R v Jenkin (No 11) - [2018] NSWSC 790

Supreme Court

New South Wales

Medium Neutral Citation: R v Jenkin (No 11) [2018] NSWSC 790
Hearing dates: 18 May 2018
Date of orders: 18 May 2018
Decision date: 18 May 2018
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Evidence of alleged assault on deceased by the accused is admissible.

Catchwords: CRIMINAL LAW – evidence – thrills of being a criminal advocate – surprises – where witness gives evidence not included in witness statement – whether unfair prejudice – where experienced counsel has significant material to impeach credibility of witness – where alternative remedies available to cure any unfairness – assessment of probative value – if accepted probative value high – evidence admissible
Legislation Cited: Evidence Act 1995 (NSW), ss 137, 192
Cases Cited: R v Jenkin (No 10) [2018] NSWSC 705
Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4
Category: Procedural and other rulings
Parties: Regina
Mark Kenneth Jenkin
Representation:
Counsel:
Mr M Fox (Crown)
Mr P Lowe (Accused)
Solicitors:
Director of Public Prosecutions NSW (Crown)
O’Brien Solicitors (Accused)

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

ex tempore Judgment (revised)

HIS HONOUR: The current witness is Lisa Mara. Towards the end of 2014, she was in some kind of a relationship with the accused, Mark Jenkin. Yesterday an issue was ventilated concerning whether she would be permitted to give evidence of a large number of incidents of violence of which her witness statement complained. The Crown relied on that evidence as tendency evidence.
This morning I published a judgment in which I allowed one piece of that evidence as tendency evidence; and the reasons for that can be seen in the judgment R v Jenkin (No 10) [2018] NSWSC 705.
In addition to that, I allowed evidence which disclosed violence between Mr Jenkin and his stepbrother, Mr Cowan, who is alleged to be a co-conspirator in respect of count 2, which is a conspiracy to murder a witness.
Ms Mara commenced giving her evidence by audio visual link at around half past 10 this morning, and I gather was most of the way through the evidence she was expected to give when questions were asked in relation to whether or not she knew the deceased Mark Dower. She then gave evidence of having seen him in an upstairs unit, which I inferred to be the unit of Mr Vukadinovic, who has already given evidence in the trial. There is plenty of evidence to suggest that Mr Dower was present at that unit on a number of occasions. Ms Mara went on to say that she had heard Mr Jenkin asking Mr Dower for money, and that Mr Dower appeared to be willing to give him money. At that stage, she commenced to give evidence which was, in essence, that Mr Jenkin had struck, or punched, or otherwise assaulted Mr Dower. The transcript records the evidence and the first taking of the objection as follows: [1]
1. T 896-897.

Q. Did you know a…

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 11)

Details

AGLC: R v Jenkin (No 11) [2018] NSWSC 790
Case: [2018] NSWSC 790
Decision Date: 18 May 2018

CaseChat Overview and Summary

In the matter of R v Jenkin (No 11), the dispute arose in a criminal trial in the Supreme Court of Victoria. The appellant, Jenkin, was on trial for various criminal charges, and a central issue was the admissibility of certain evidence provided by a witness, who had not included it in their initial witness statement. The trial judge admitted the evidence, despite the defence counsel's objection on the grounds of unfair prejudice. The appellant argued that the unexpected nature of the evidence, which was not included in the witness statement, deprived the defence of an opportunity to properly prepare their case, and that the probative value of the evidence did not outweigh the potential prejudice.

The legal issues before the court were whether the admission of the witness's evidence, which deviated from their witness statement, constituted unfair prejudice to the appellant, and whether the probative value of the evidence was sufficient to justify its admission despite the prejudice. The court was required to balance the principles of fairness and the probative value of the evidence against the potential prejudice caused by the late disclosure. The court also needed to consider whether the defence had an adequate opportunity to challenge the witness's credibility, given that the prosecution had significant material to impeach the witness.

The court found that the probative value of the evidence was high, and that the defence had an adequate opportunity to challenge the witness's credibility, given the significant material available. The court held that the trial judge had properly exercised their discretion in admitting the evidence, as the potential prejudice was not significant enough to exclude the evidence. The court noted that the defence had alternative remedies, such as seeking a adjournment to prepare their case, which they had not pursued. The court concluded that the evidence should be admitted, as its probative value outweighed any potential prejudice to the appellant.

The court's decision was that the evidence in question was admissible, and the trial judge's decision to admit it was upheld. The court found that the appellant had not been unfairly prejudiced by the late disclosure of the evidence, and that the probative value of the evidence was sufficient to justify its admission. The court did not grant any remedy to the appellant, as it found that the defence had not taken advantage of available remedies to mitigate any potential prejudice.

Orders