R v Jenkin (No 13)

[2018] NSWSC 791

Supreme Court

New South Wales

Medium Neutral Citation:	R v Jenkin (No 13) [2018] NSWSC 791
Hearing dates:	21-22 May 2018
Date of orders:	22 May 2018
Decision date:	22 May 2018
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Order that an inspection be held in the area of Crana Place, Mangerton at various locations to be agreed between the parties.
Catchwords:	EVIDENCE – inspection of scene of events giving rise to murder charge – joint application – relevant considerations
Legislation Cited:	Evidence Act 1995 NSW, s 53
Cases Cited:	Tongahai v The Queen [2014] NSWCCA 81; (2014) 241 A Crim R 217 Jamal v R [2012] NSWCCA 198; (2012) 223 A Crim R 585
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)

1. The parties in this criminal trial have made an application pursuant to s 53 of the Evidence Act 1995 (NSW) for an order that an inspection or view be held in the area of Crana Place, Mangerton in Wollongong. That is the location of most of the events that give rise to the proceedings.

2. The trial is being conducted by Judge alone, and in the course of yesterday's evidence I inquired of the parties whether any consideration had been given to the conduct of a view. On an earlier occasion, I indicated that I was finding understanding the layout of the various unit blocks that had been mentioned in the evidence, and the points of view described by witnesses, as being quite confusing, in spite of the extensive photographic evidence which is already tendered and an ISRAPS presentation which allows me, at least by way of photographic material, to essentially poke around some of the relevant locations. However, the ISRAPS presentation, as helpful as it is, does not really give me any sense of scale and distance.

3. The parties, having considered my inquiry, essentially made a joint application, both parties being in agreement that the holding of a view will assist in my understanding of the geography of the area.

4. Section 53(2) provides a prohibition on holding a view or, as it describes it, an inspection, if the parties will not be given a reasonable opportunity to be present. That is of particular concern where an accused person is prohibited from being present and I note the decision in Jamal v R [2012] NSWCCA 198; (2012) 223 A Crim R 585, but see Tongahai v The Queen [2014] NSWCCA 81; (2014) 241 A Crim R 217.

5. Once the matter was raised in the present case, Mr Lowe of counsel took instructions from Mr Jenkin and Mr Jenkin indicated, based on his understanding of what will and will not be looked at on the view, that he does not wish to be present. It may well be that arrangements could be made for him to be present. He is in custody and Corrective Services would have to organise that, but he has indicated that he does not wish to be present on the view.

6. HIS HONOUR: Is that correct, Mr Lowe?

LOWE: That is so, your Honour.

7. I note that Mr Jenkin will be represented, both by his lawyer and by his counsel on the holding of the view, and it is in an area with which he is very well familiar, having lived there for at least a year or so prior to the events giving rise to the current charges.

8. I also note that the court reporters have indicated that they can attend the view and record everything that is said. So I am satisfied that both parties have a reasonable opportunity to be present, and whilst Mr Jenkin himself will not be present, he will be represented and everything we see and say will be recorded.

9. Subsection (3) provides a list of criteria that may inform the Court's decision as to whether to hold the view. The first, that the parties be present: I have already dealt with that.

10. The second is the critical one in this case I think, and that is whether the inspection will assist the Court in resolving issues of fact or understanding the evidence. As the tribunal of fact, there is no doubt in my mind that an attendance on the view will assist me in resolving issues of fact. It will give me a better understanding of the points of view of various witnesses whose evidence is, to say the least, controversial; and whether they could really see what they say they could see. It will give me a better understanding of distances between relevant places and, as such, will assist me in resolving important issues of fact and in understanding the evidence that has already been given, and I expect will be given over the coming weeks.

11. I should indicate that to this point we have heard largely from civilian witnesses who are residents of the area. We have heard evidence from, on my calculation, 41 witnesses over the last three weeks. Whilst they have, perhaps largely done their best to describe the surroundings, many of them have had problems in articulating their evidence and in those descriptions. At this stage, I do not have an understanding of the geography and topography. A view would be greatly beneficial in gaining that understanding.

12. There is nothing to suggest that the inspection might be unfairly prejudicial, misleading or confusing, and it certainly would not result in an undue waste of time.

13. Finally, to deal with the last of the relevant criteria in s 53(3), I am told that there have been no material alterations to the scene, so that there would be nothing misleading in looking at the area around the unit block and laundry where Mr Dower's body was found.

14. Accordingly, I order than an inspection be held in the area of Crana Place, Mangerton at various locations to be agreed between the parties.

**********

Decision last updated: 29 May 2018