R v Jenkin (No 10) - [2018] NSWSC 705

Supreme Court

New South Wales

Medium Neutral Citation: R v Jenkin (No 10) [2018] NSWSC 705
Hearing dates: 17 May 2018
Decision date: 18 May 2018
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
1. The evidence in paragraphs 9, 10, 13, 14 and 15 of Ms Mara’s statement is not admissible as tendency evidence.
2. The evidence in paragraph 16 of Ms Mara’s statement is admissible as tendency evidence.
3. The evidence of Ms Mara that the accused assaulted Mr Cowan is admissible but pursuant to s 136 Evidence Act 1995 its use will be limited to explain the nature of the relationship between the men and to place the actions of Mr Cowan in context.
4. I make a direction under s 5B Evidence (Audio and Audio Visual Links) Act 1998 that Ms Mara may give evidence at a place other than the courtroom.

Catchwords:
CRIMINAL LAW – tendency evidence – evidence of former partner of accused – evidence of domestic violence – where accused charged with murder – where allegation that accused detained victim and committed acts of violence on him – defence case that accused helping victim dry out from alcoholism – whether evidence has significant probative value – general allegations of violence not admissible – allegations involving detention and violence admissible

CRIMINAL LAW – uncharged acts of violence on alleged co-offender – evidence not admissible as tendency evidence – admissible to establish nature of relationship and explain conduct of the co-offender – order made limiting use of evidence
CRIMINAL LAW – whether witness should be permitted to give evidence by audio visual link – where witness alleged victim of violence – opinion of psychologist that procedure will minimise impact of trauma – where accused opposes direction – onus on prosecution – interests of administration of justice – relevant considerations – direction made
Legislation Cited: Evidence Act 1995 (NSW), ss 97, 101, 135(c), and 136
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
Cases Cited: Hughes v The Queen [2017] HCA 20, (2017) 92 ALJR 52
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R v Jenkin (No 8) [2018] NSWSC 704
Category: Procedural and other rulings
Parties: Regina
Mark Kenneth Jenkin
Representation:
Counsel:
Mr M Fox (Crown)
Mr P Lowe (Jenkin)
Solicitors:
Director of Public Prosecutions (Crown)
O’Brien Solicitors (Jenkin)

File Number(s): 2015/00345562
Publication restriction: No

Judgment

Yesterday, the parties raised two or perhaps three issues for determination in relation to the evidence of a witness it is proposed to call to give evidence today. The witness is Lisa Mara who was in some kind of a relationship with the accused man, Mark Jenkins, from late 2014. The Crown made an application for her evidence to be given by audio visual link (AVL). I will return to that application in due course because counsel for the accused, Mr Lowe, indicated a more fundamental issue and one that may influence the position he would take in relation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jenkin (No 10)

Details

AGLC: R v Jenkin (No 10) [2018] NSWSC 705
Case: [2018] NSWSC 705
Decision Date: 18 May 2018

CaseChat Overview and Summary

The case of R v Jenkin (No 10) involved a murder charge against the accused, where the primary issue was the admissibility of certain evidence related to domestic violence and uncharged acts of violence. The Supreme Court was tasked with determining whether the evidence provided by the former partner of the accused, as well as the alleged acts of violence on the victim, could be admitted in court. The accused argued that the evidence was not relevant to the case and should be excluded under the tendency evidence provisions. The prosecution, on the other hand, contended that the evidence had significant probative value in establishing the nature of the relationship between the accused and the victim and in explaining the accused's conduct.

The court addressed the admissibility of the evidence by considering the relevance and probative value of the information. It was determined that general allegations of violence were not admissible, but allegations involving detention and violence were. The court held that the evidence of domestic violence was relevant to establish the context in which the accused and the victim interacted, and to demonstrate the accused's potential motive and propensity for violence. In contrast, the court ruled that evidence of uncharged acts of violence on the alleged co-offender was not admissible as tendency evidence but could be used to establish the nature of the relationship and to explain the conduct of the co-offender. Additionally, the court considered the admissibility of evidence from a witness who was an alleged victim of violence and ruled that the witness should be permitted to give evidence by audio-visual link, based on the psychologist's opinion that this procedure would minimise the impact of trauma on the witness.

The court's decision balanced the interests of the administration of justice with the need to protect witnesses from further trauma. The court ultimately allowed the evidence of domestic violence and the evidence of uncharged acts of violence on the alleged co-offender to be admitted, subject to certain conditions and limitations. The court also made an order permitting the witness to give evidence by audio-visual link. The accused's application to exclude the evidence was dismissed, and the case proceeded to trial with the admitted evidence. The final orders of the court ensured that the evidence was used in a manner that was both fair to the accused and protective of the witnesses involved.

Orders