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)

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.
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.
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.
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.
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…

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 13)

Details

AGLC: R v Jenkin (No 13) [2018] NSWSC 791
Case: [2018] NSWSC 791
Decision Date: 22 May 2018

CaseChat Overview and Summary

The case before the court involved a joint application by the accused, the appellant, and the Crown prosecutor. The appellant was charged with the murder of a deceased person. The parties jointly applied for the court to order an inspection of the scene of the events giving rise to the murder charge. The case was heard in the Supreme Court of Victoria.

The legal issues before the court were whether an inspection of the scene in question was necessary for a fair trial, and if so, what considerations should be taken into account in making such an order. The court had to balance the appellant's right to a fair trial with the potential for prejudice to either party from an inspection of the scene. The court also had to consider the timing of the application and whether an inspection was still necessary given the time that had elapsed since the events in question.

The court found that an inspection of the scene was necessary for a fair trial, and that the considerations set out in previous cases should be followed in making such an order. The court held that the timing of the application was not a barrier to making the order, and that the potential for prejudice to either party could be mitigated through appropriate measures. The court ordered that an inspection of the scene take place, and set out the procedures that should be followed to ensure that the inspection was conducted in a fair and impartial manner.

The court's decision provides guidance for parties in criminal cases where an inspection of the scene of the crime is necessary for a fair trial. The court's emphasis on the need for a fair and impartial inspection highlights the importance of this aspect of the trial process, and the potential consequences of any perceived or actual bias. The decision also underscores the need for careful consideration of the timing of such applications, and the potential for prejudice to either party.

Orders