David Scott PARKINSON v R (Cth); R v David Scott PARKINSON (NSW); David Scott PARKINSON v R (NSW) [2011] NSWCCA 133 (15 June 2011)


(1) Commonwealth offence – attempt to dishonestly obtain financial advantage – false claim for approximately $500,000 Goods and Services Tax refund – persistence in pursuit of claim.
(2) State offences – attack on victims with operating chainsaw – evidence of attack by another (the appellant’s father) as victims fled the danger from the chainsaw – admissibility of that evidence – jury directions – sentence – failure to accumulate upon sentence for Commonwealth offence so that no minimum custody referable exclusively to State offences – inadequacy – appellant re-sentenced.

21. There were two reasons supporting the admissibility and relevance of the evidence of what transpired between Mr Hartnett and Mr Cameron and Mr Clark. First, it was admissible so that the jury could properly assess the facts and circumstances in the correct context. To discontinue the description at the point of wielding the chainsaw by the appellant would leave a gap in the intelligibility of what the Crown alleged had occurred.
22. In O’Leary v The King [1946] HCA 44; (1946) 73 CLR 566 approved as a correct statement of doctrine was this extract from Roscoe On Evidence in Criminal Cases 14 th ed:

“Thus evidence may be given, not only of the act charged itself, but of other acts so closely connected therewith, as to form part of one chain of facts which could not be excluded without rendering the evidence unintelligible – part in fact of the res gestae.”

The Court
23. In that case Dixon J (as he then was) spoke to the same effect in the context of that appeal:

” Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.”

24. O’Leary remains authoritative following the passing of the Evidence Act 1995 : Adam v Regina [1999] NSWCCA 189; (1999) 106 A Crim R 510.