Application for an inquiry by Parker under s 424 of the Crimes Act 1900 [2003] ACTSC 38 (16 May 2003)

Last Updated: 20 May 2003

APPLICATION FOR AN INQUIRY BY JOHN BARRINGTON PARKER UNDER s 424 OF THE CRIMES ACT 1900 [2003] ACTSC 38 (16 May 2003)

CRIMINAL LAW - application for inquiry into conviction - relevant principles.

Crimes Act 1900, ss 421, 422, 424

Parker v R [2002] FCAFC 133

No SCC 147 of 2002

Judge: Crispin J

Supreme Court of the ACT

Date: 2003IN THE SUPREME COURT OF THE )

) No. SCC 147 of 2002

AUSTRALIAN CAPITAL TERRITORY )

APPLICATION FOR AN INQUIRY BY JOHN BARRINGTON PARKER UNDER s 424 OF THE CRIMES ACT 1900

ORDER

Judge: Crispin J

Date: 16 May 2003

Place: Canberra

THE COURT ORDERS THAT:

1. the application for an inquiry under s 424 of the Crimes Act 1900 be dismissed.

1. On 17 September 2002 John Barrington Parker applied, by letter, for an inquiry pursuant to s 424 of the Crimes Act 1900 into his conviction for an offence of sexual intercourse without consent said to have been committed on 7 September 1995.

2. The complainant had been unable to identify her assailant and it was not until 23 September 1999 that Mr Parker was arrested. His fingerprints were then taken and Federal Agent Bush of the Forensic Services Division of the Australian Federal Police subsequently concluded that the fingerprints on the front label of a soap dispenser found in the complainant's bedroom had been made by Mr Parker's right thumb.

3. He was duly committed for trial and on 17 October 2000, after being found guilty by a jury, was formally convicted and sentenced to a term of 8 years imprisonment with a non parole period of 5 years.

4. An appeal against the severity of the sentence was dismissed by a Full Court of the Federal Court of Australia on 12 April 2001.

5. Mr Parker subsequently applied to a further Full Court for leave to appeal against the conviction but this application was dismissed on 17 May 2002.

6. On 16 October 2002 the Registrar wrote to Mr Parker advising him that I had directed that his application for an inquiry be listed for directions on 12 November 2002 and indicating that, should he be able to arrange legal representation, the Court would entertain further submissions at that time. The letter also advised him that if he were unable to obtain legal representation, the Court would receive any further written submissions he might care to provide prior to that date.

7. Mr Parker replied to the Registrar's letter on 27 October 2002 informing her that he was unable to afford legal representation but providing further brief written submissions.

8. On 12 November 2002 I directed that the Director of Public Prosecutions file any submissions in relation to the application and supportive material within 14 days. Regrettably, those submissions were not supplied until 21 March 2003 and then only after the Registrar had arranged for the matter to be again listed before me so that I could give further directions in the light of this non-compliance. Mr Parker provided further written submissions by letter dated 17 April 2003 though they were not apparently received until 29 April 2003.

9. In support of his application for an inquiry into his conviction, Mr Parker raised the following issues:

* there had been no substantial evidence to confirm the complainant's allegation that she had been sexually assaulted;

* there had been a discrepancy in the description given by the complainant and two other witnesses as to the weather on the night in question;

* there were other possible explanations for his thumb prints to have been found on the soap dispenser;

* the complainant's description of her attacker had differed from Mr Parker's appearance;

* another person had driven away from the vicinity of the complainant's house on the night in question;

* there were discrepancies in the "sexkit" numbers used in relation to subsequent scientific examination of samples taken from the scene;

* hair samples found on the complainant's bed were never questioned; and

* his ex-wife should not have been allowed to give evidence.

10. It should be noted that the last mentioned issue was raised on Mr Parker's behalf in support of his application for leave to appeal against his conviction and that the Full Court accepted that some of the evidence given by his ex-wife should not have been admitted at his trial: see Parker v R [2002] FCAFC 133.

11. Nonetheless, it found that the wrongful admission of that evidence had not deprived him of the benefit of a fair trial.

12. Applications of this nature are governed by s 422 of the Crimes Act the relevant portion of which is in the following terms:

(1) An inquiry may be ordered under this part into the conviction of a person for an offence only if-

(a) there is a doubt or question about whether the person is guilty of the offence; and

(b) the doubt or question relates to -

(i) any evidence admitted in a relevant proceeding; or

(ii) any material fact that was not admitted in evidence in a relevant proceeding; and

(c) the doubt or question could not have been properly addressed in the relevant proceedings; and

(d) there is a significant risk that the conviction is unsafe because of the doubt or question; and

(e) the doubt or question cannot now be properly addressed in an appeal against the conviction; and

(f) if an application is made to the Supreme Court for an inquiry in relation to the conviction - an application has not previously been made to the court for an inquiry in relation to the doubt or question;

(g) it is in the interests of justice for the doubt or question to be considered at an inquiry.

13. The term "relevant proceeding" as used in this sub section is defined by s 421 to mean "a prosecution or other proceeding in relation to the offence, including an appeal in relation to a finding of a court in relation to the offence".

14. Mr Parker has not sought to adduce any fresh evidence casting doubt on the validity of the evidence that his thumb print was found on the soap dispenser. He has suggested a further possible explanation for the presence of his thumb print but that explanation seems inherently implausible, especially when one takes into account the obvious importance which this issue assumed at his trial and the fact that the explanation has been advanced only in his most recent submissions, more than 2½ years after his trial. Furthermore, it is difficult to see any basis for concluding that the issue could not have been addressed at his trial.

15. His other submissions were based upon perceived deficiencies in the Crown case or on perceived inadequacies in the investigation.

16. I have carefully considered all of the issues raised by Mr Parker in the light of the transcript of the trial but have been unable to identify any substantial doubt or question about his guilt which could not have been properly addressed at his trial.

17. Accordingly, I am obliged to dismiss his application.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 16 May 2003

Counsel for the applicant: (in person) by written submissions

Counsel for the respondent: ACT Director of Public Prosecutions

Date of hearing: 12 November 2002, 24 March 2003

Date of judgment: 16 May 2003