R v Jenkin (No 14) - [2018] NSWSC 837

Supreme Court

New South Wales

Medium Neutral Citation: R v Jenkin (No 14) [2018] NSWSC 837
Hearing dates: 23 May 2018
Date of orders: 23 May 2018
Decision date: 23 May 2018
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
The evidence of the recovered video file is admissible.

Catchwords: CRIMINAL LAW – evidence – documentary evidence – proof of contents of documents – Crown seeks to tender video file recovered from mobile telephone – where original file unplayable or corrupted – where programme used to recover or repair document – operation of s 48 Evidence Act – whether section renders evidence inadmissible – whether video file a document – whether relevant “document” is the corrupted file or the recovered file – assessment of probative value of evidence – evidence admissible
Legislation Cited: Evidence Act 1995 (NSW), ss 47, 48, 51, 76-79, 135, 137 and 146
Cases Cited: Wade v The Queen [2014] VSCA 13; (2014) 29 A Crim R 29
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

Judgment

On Wednesday 23 May 2018, over the objection of the accused and following a relatively brief voir dire, I ruled that an electronic video file recovered from a mobile telephone was admissible in the Crown case. The file, which had the name “MOV_0051.mp4_fixed.mp4”, became part of Ex CC. Ex CC is a disc that contains two other video files to which objection was not taken. These are my reasons for deciding that the evidence is admissible.
On the Crown case, the video file in question was “recovered” from another video file (“MOV_0051.mp4”) located on a telephone seized from the accused at the time of his arrest on 8 April 2015. The evidence will be that the recovered file depicts the deceased in the accused’s bathroom in the days or weeks prior to his death. According to the data recovered from the ‘phone, the video was recorded on 22 March 2015 at about 4:20pm. The accused is charged with the deceased’s murder. The Crown case is that the accused was filming the scene and that his voice can be heard speaking to, or abusing, the deceased.
At the heart of the objection (in its various formulations) is the fact, not disputed by the Crown, that the original video file on the mobile telephone was unable to be played either (as I understood the evidence) on the telephone itself or when the file was first downloaded (or extracted) by police using a well-known computer programme called Cellebrite. As it could not be played, the Crown expert witness, Senior Constable Yang, described the file as being “corrupted”. This description, and the manifestation of the problem with the file, was somewhat circular: the file was corrupted because it could not be played; it could not be played because it was corrupted. There…

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 14)

Details

AGLC: R v Jenkin (No 14) [2018] NSWSC 837
Case: [2018] NSWSC 837
Decision Date: 23 May 2018

CaseChat Overview and Summary

The matter before the court was a criminal case where the accused, Jenkin, faced charges related to the contents of a video file recovered from his mobile telephone. The Crown sought to tender the video file as evidence, but the file was either unplayable or corrupted. To recover or repair the file, a programme was used. The primary legal issues revolved around the admissibility of the recovered video file under section 48 of the Evidence Act, particularly whether the section rendered the evidence inadmissible and whether the relevant "document" in this context was the corrupted file or the recovered file. The court also needed to assess the probative value of the evidence.

The court considered the definition of "document" in section 48 of the Evidence Act, which includes any record of information. It determined that the relevant "document" for the purposes of the section was the recovered file, as it was the one presented to the court. The court assessed the probative value of the evidence, noting that the unplayable or corrupted nature of the original file did not render the recovered file inadmissible. The court concluded that the probative value of the recovered file outweighed any prejudicial effect, and thus, the evidence was admissible. The court emphasised the importance of ensuring the integrity of the evidence, but found that the measures taken to recover the file were sufficient to maintain its admissibility.

The court found in favour of the Crown, allowing the tendering of the recovered video file as evidence. It ruled that the use of a programme to recover or repair the file did not render the evidence inadmissible under section 48 of the Evidence Act. The court held that the relevant "document" for the purposes of the section was the recovered file, and the probative value of the evidence was sufficient to justify its admission. The court's decision provided clarity on the admissibility of recovered documentary evidence, particularly in cases where the original file is unplayable or corrupted.

Orders