R v Parsons [2000] VSCA 15

[2000] VSCA 15

Court of Appeal (Vic)|2000-02-23|Before: PHILLIPS, C.J., BROOKING, J.A. and HAMPEL, A.J.A.

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At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

2000-02-23

Before

PHILLIPS, C.J., BROOKING, J.A. and HAMPEL, A.J.A.

Source

Original judgment source is linked above.

Judgment (50 paragraphs)

[1]

The applicant's age was, of course, of importance. His Honour noted it and I can find no evidence on the face of the sentence - particularly the non-parole period - that he did not accord it proper weight. In my opinion, the period fixed was in range.

[2]

Between 1983 and 1992 Robert Parsons lived with his de facto wife Angela. She changed her name to his and bore him two children. They separated in 1992 and the children were in her custody from then on, although he had regular access to them. For much of 1997 Angela Parsons tried without success to obtain maintenance payments from Robert Parsons to help her support their two children. She took many steps, both in the Family Court and by applying to the Child Support Agency. Parsons resisted these, saying that he was a poor man. In fact, even on his own subsequent and reluctant admission, he was worth about $1 million. In December 1997, after many unsuccessful attempts by Angela to compel payment of child maintenance, the parties came before the Dandenong Family Court, and the father was faced with an application for an interim order that he pay about $47,000 into a trust account as security for the payments he might ultimately be ordered to make for the support of his children. He had paid nothing for many months and was determined to pay nothing. He had buried $400,000 in cash underneath the wood heap in order to conceal his assets, having sworn that he had only $300 in cash. Angela's solicitor was trying to get discovery of documents from him with a view to showing that there must be hidden assets. When the hearing in the Family Court was broken off for lunch on 10 December Parsons thought that the case was not going well for him. No-one would suggest that Parsons was not in a state of high emotion during that adjournment. As Angela was walking back to court along the footpath not far from the Family Court building, he armed himself with a long-bladed "Wiltshire Stay Sharp" knife which, housed in a sheath, he had brought to the scene in his car. He ran across the road, seized her and stabbed her 48 times. There were 41 wounds to the neck and upper body, eight of which went into the heart or its surrounds. There were numerous wounds to the neck, a number of them "through and through" injuries, running right through the throat and coming out the other side. The photographs used by the pathologist to describe the injuries show most graphically the nature and extent of the attack.

[9]

"(a) the Applicant very much loved his children; (b) the Applicant was very protective toward his children; (c) the Applicant had had much access with his children, both weekly and during holidays, for a considerable period of time; (d) the Applicant was concerned that the deceased was not sufficiently concerned for the safety and well-being of his daughter Jessica; (e) the deceased unilaterally imposed a reduction in/upon the amount of access the Applicant had with his children; (f) the personality of the deceased had changed in about mid-1996; (g) the deceased instituted proceedings in the Family Court seeking orders which would reduce the amount of access the Applicant had with his children; (h) the Applicant became very stressed about both the reduced and proposed reduction in the access which the Applicant had with his children; (i) the deceased, at a joint conciliation meeting at the Dandenong Family Court with Mr Munro, rejected a proposal whereby the Applicant would have week-about access with his children; (j) the deceased was engaged in a sexual relationship with the solicitor acting for her in the proceedings in the Family Court; (k) the Applicant was not satisfied with the conduct of the solicitors engaged by him to act on his behalf in the proceedings in the Family Court and then represented himself; (l) Miss Gibbons, the Family Court counsellor, had wrongly prevented the Applicant from taking notes at the sessions; (m) the Applicant thought he would 'los[e] the kids'; (n) the Applicant 'knew' that the/an issue to be determined in the proceeding in the Family Court on 8 December was his access to his children; (o) the Applicant found the proceedings in and at the Family Court 'very stressful'; (p) the Applicant did not get on well with the solicitor acting for the deceased; (q) the Applicant did not feel at ease with the Judicial Registrar; (r) the Applicant got the impression that the deceased was indicating to him that '[they had got him and he was going to lose the kids and she could do whatever she wanted to do and there was nothing he could do about it]'; (s) the deceased had not produced documents as required by the subpoena issued by the Applicant and, as a consequence, the deceased was concealing her assets from the Family Court; (t) the deceased and her solicitor were not being frank with and had lied to the Family Court; (u) the Applicant was not being treated fairly at the Court; (v) the Applicant, by reason of the manner in which the Judicial Registrar and the solicitor for the deceased were conducting themselves, felt that he would not get justice; (w) the deceased, in the street outside the Dandenong Family Court on 10 December, had smiled at the Applicant, yelled out to him, 'We have got you now, you bastard', put her head back and laughed, thereby 'saying, we have got you, I can do whatever I like with [your] kids, I can put [your] kids at risk and there is not a thing you can do about it, because I have got the law on my side'; and (x) the deceased, when she did what she did as set out in the preceding para., did so knowing of the state of the Applicant."

[10]

If only in the interests of fairness, I should point out that there was no evidence of the sexual relationship alleged in paragraph (j), apart from an admission attributed by the applicant to the victim, and that at the trial the applicant's counsel expressly conceded that there was no such relationship. Mr Holdenson asked us to treat the paragraph as if it began "the deceased said that she was engaged". Mr Holdenson also said that paragraph (u) should be treated as if it run "the Applicant considered that he was not being treated fairly at the Court". As regards paragraph (r), this piece of evidence, given by the accused, is merely evidence of his alleged state of mind and adds nothing whatever to the evidence of what was said or done by the deceased or anyone acting on her behalf. Something must also be said about paragraph (w). The words attributed to the deceased in this ("we have got you now, you bastard"), and for that matter the suggestion that the deceased said anything at all shortly before she was stabbed to death, emerged only in the evidence given by the applicant. They had not been mentioned by his counsel in telling the judge what the provocative conduct on the day of the killing was, counsel referring only to the victim's having smirked and made a provocative gesture. The uttering of the words depended solely on the evidence of the applicant himself, none of the bystanders supporting his account. He had told the police only that she had laughed at him. Of course, despite these considerations, the evidence given by the applicant that these words were spoken was there for the consideration of the jury, and the present question must be considered on the version of events most favourable to the applicant. The important thing is that, as the word "thereby" in the outline of argument shows, the applicant did not swear that any of the words preceded by "thereby" were uttered by the victim. Those words, like the words in paragraph (r), might be described as an innuendo set up by him.

[14]

The judge gave a long ruling in which he excluded much of the evidence proposed to be led, including evidence that in 1990 the deceased, whose face was covered in bruises, had said that her injuries had been inflicted by the accused, evidence that this bruising had been photographed and evidence that the deceased had said that she had hidden the photographs and had asked her sister to retrieve them if anything should happen to her. There was also evidence of the finding of the photographs by the sister shortly after the death, they being hidden in the lining of one of the deceased's coats hanging in her son's wardrobe. All this evidence was excluded, and indeed the judge excluded all evidence of what is often loosely called "relationship" before the beginning of 1997. The evidence had in fact covered incidents over a very long period, going back from the time of the killing into the 1980's. His Honour referred to a number of authorities and in particular to what had been said by Gleeson, C.J. in R. v. Frawley[4] about the imprecision of the concept of relationship. His Honour said that in the instant case the evidence was relevant to the state of mind of the deceased having regard to the fact that provocation was alleged. It will be recalled that the applicant's counsel had told the judge that just before the killing the victim smirked and made a provocative gesture. The judge had, understandably, raised with counsel the apparent absence of sufficient evidence in the depositions to raise an issue as to provocation but had emphasised that he did not know what evidence might be led as part of the defence case. In his ruling on the reception of evidence, the judge said that evidence of the victim's state of mind in the sense of her fear of the accused bore on the probability of her having smirked at and otherwise provoked the accused just before she was killed. The judge held the evidence to be relevant and admissible and declined to exclude it in the exercise of his discretion except by confining the period to the year 1997 and excluding certain pieces of evidence even in relation to that year. The ruling made it clear that evidence that the victim had spoken of threats made to her by the accused would be received only as evidence of her fear of him, not as evidence of the fact of the threats.

[16]

When the applicant had given evidence and his case had been closed the judge ruled that provocation should not be left to the jury. An unsuccessful application was thereupon made by the applicant's counsel for the discharge of the jury, and the refusal of this application is the subject of ground 5. The basis of the application was that evidence had been led by the Crown of the fear which the victim had of the accused as bearing on the improbability of her having provoked him on the day of the killing and that, since provocation would not be left to the jury, the jury would now have before it evidence which would not have been received had counsel for the accused not told the judge, near the outset of the trial, that the issue - indeed the only issue - for the jury's consideration would be provocation. The judge had at the outset made it entirely clear to counsel that there was a very real danger that he would in due course withdraw provocation from the jury and had warned counsel of the possible forensic disadvantage of setting up provocation as the issue, only to have it withdrawn from the jury's consideration when all the evidence was in. Notwithstanding that warning counsel had chosen to proceed on the basis that he would, if permitted by the judge, be seeking to persuade the jury that the proper verdict was manslaughter by reason of provocation. No doubt he had taken up this position because of the extreme difficulty of finding any plausible defence to the charge of murder. In refusing the application for the discharge of the jury the judge said that he had warned the defence that he might very well, when both cases were closed, find it necessary to take provocation away from the jury and that what had happened was therefore not at all unexpected. He added that trials were not to be run sequentially, starting with one defence and if that was not available then going back and starting again with a new jury and running another defence: that was not how the system worked. With these remarks I entirely agree. The judge then said that the jury would not be discharged. The judge then added that he proposed to direct the jury that evidence of statements made by the deceased about her fears and threats made to her must be disregarded by them and that the reason was that the evidence was no longer relevant, since he had decided as a matter of law that provocation did not arise. This intimation was given shortly before the final addresses began.

[22]

I have no doubt that the evidence in items (v) and (vi) was relevant and admissible and that there was no error in failing to exclude it in the exercise of the "prejudicial effect" discretion. The evidence bore on the probabilities with regard to what became ultimately the only issue in the case, murderous intent. Item (viii) was evidence given by Ms Gibbons, a counsellor at the Family Court. As a result of the judge's ruling given near the start of the trial, she gave some edited evidence in answer to leading questions. The unexpurgated version was that the applicant had said to her, in answer to a question whether there had ever been violence in the relationship with his former de facto wife, that he was a person who, if provoked, would attack and had gone on to say that he had once assaulted the captain and first mate on board a ship and been given a good behaviour bond and had on another occasion knocked a man unconscious with a blow. The edited version given in evidence was that Parsons had said that he was a person who, if provoked, would attack and that he had given instances which related, not to his relationship with his de facto wife, but to other people. Mr Holdenson submits that this evidence had no bearing on any issue and was simply evidence of a propensity to engage in violent conduct. It seems to me that even if it was open to the jury to conclude that the accused was by implication admitting that there had "been violence in the relationship", the admission was too vague to be capable of being used as bearing on any issue in the trial. The applicant was, as Mr Holdenson pointed out, cross-examined about what he had said to Ms Gibbons. On the other hand, the other direct evidence must be borne in mind and as to this it is important to consider to what extent it was challenged by the applicant, either through his counsel in cross-examination or in his own evidence. Having regard to the whole of the evidence and to what was put or not put by counsel for the accused in cross-examination, it seems to me that the evidence - and I mean of course the direct evidence - of what was said about killing would have entirely overshadowed the evidence of Ms Gibbons and the cross-examination arising from it. In my opinion the consequences of the reception of the inadmissible evidence given by Miss Gibbons are not in all the circumstances such as to bring the case within the primary provisions of s.568(1) of the Crimes Act 1958, quite apart from the proviso. If I were wrong in this view I would say that the circumstances which I have mentioned bring the case within the proviso, leaving aside altogether the quite separate point I shall mention later, namely, that conviction after a trial conducted without this imperfection was inevitable, having regard to the fact that no reasonable jury could entertain a reasonable doubt as to the sole issue raised by the accused. I would not uphold ground 4.

[38]

It is quite impossible to say it was not open to the judge to decide that this case called for a life sentence; indeed, I would have been surprised if the judge had not reached that conclusion. A non-parole period was fixed, a very long one - 25 years. Mr Holdenson rightly emphasised the age of his client. He observed that there was a real danger that the applicant would die in prison. But the case is an uncommonly bad one. In his reasons for sentence a number of adverse findings of fact were made by the judge. None of them has been challenged. I need not mention them all. His Honour recounted the victim's attempts during 1997 to get money out of the applicant to help her to support their children; his attempts to defeat or delay the proceedings; his determination to pay nothing notwithstanding his substantial means and his enjoyment of access; his mounting anger, leading to hatred of the victim - because of fear that maintenance payments might make some tiny inroad into his secure financial position; his striking lack of remorse and striking and persisting self-justification. The judge found that the suggested provocation was one of the applicant's many inventions and that the victim had long gone in fear of him. This was no killing of a sudden by a person roused by some incident to anger. Nor was it (as the applicant has claimed) the result of a succession of unjust demands and unfair, improper and malicious acts by the woman or her solicitor and unjust responses by the Family Court. There was a long history, but it was a history of ordinary, legitimate attempts to get money for the children leading to an increasingly angry response and a determination to pay nothing, culminating in the burial of $400,000 under the wood heap and the savage killing. Murder had been in contemplation for some time. The victim was murdered as she walked back to court by a man determined to kill rather than have the order made against him which he feared was imminent. Such a killing must be viewed most seriously.