R v Jenkin (No 15) - [2018] NSWSC 826

Supreme Court

New South Wales

Medium Neutral Citation: R v Jenkin (No 15) [2018] NSWSC 826
Hearing dates: 4 – 5 June 2018
Date of orders: 05 June 2018
Decision date: 05 June 2018
Before: Hamill J
Decision:
(1) The evidence is not admissible in re-examination under s 39(a).
(2) Leave under s 39(b) to adduce the evidence in re-examination is refused.

Catchwords: CRIMINAL LAW – limits on re-examination – whether evidence an admission – whether reasonable excuse for failure to record – where no evidence of conversation given in evidence in chief or through other police officer present – where counsel cross-examined on different conversation – other conversation did not contain an admission – matter did not arise out of evidence given in cross-examination – whether leave should be granted – relevant considerations under s 192 – where trial proceeding well beyond estimate – inefficient conduct of proceedings – every conceivable bunny – every possible rabbit hole – leave would extend length of proceedings – evidence not important in context of the case – leave refused
Legislation Cited: Criminal Procedure Act 1986 (NSW), s 281
Evidence Act 1995 (NSW), ss 39 and 192
Cases Cited: R v Jenkin (No 14) [2018] NSWSC 837
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)

Shortly after 4.00pm yesterday, an issue arose as to whether the Crown could lead certain evidence in re-examination of the current witness, Dylan Liackman. As I understand it, Mr Liackman is the second officer in charge of the police investigation into the death of Mark Dower and the prosecution of Mark Jenkin for Mr Dower’s murder. The officer in charge, Detective Adams, has already given lengthy evidence in the trial.
In his evidence in chief, Mr Liackman gave evidence of his role in the investigation and various jobs that he did in gathering the evidence and liaising, to put it in the most neutral possible term, with the witnesses. [1] Part of his evidence included that he was present when the accused man was arrested at the Newcastle Police Station. This part of his evidence was led in the following terms (T 1646-1647):
1. More will need to be said about his interaction with a particular witness (Lisa Mara) when I deliver my judgment on the verdict in the case.

Q. Now, on 24 November 2015 at 9.50 am, were you and Detective Adams at Newcastle Police Station?
A. Yes, we were.
Q. What were you doing there?
A. I think that was the occasion we were there to arrest Mark Jenkin.
Q. And he was brought in custody from the Cessnock gaol?
A. Yes.
Q. And was he informed that he was under arrest in relation to the murder of Mark Dower?
A. Yes, he was.
Q. And the solicit to murder RS?
A. Yes.

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 15)

Details

AGLC: R v Jenkin (No 15) [2018] NSWSC 826
Case: [2018] NSWSC 826
Decision Date: 05 June 2018

CaseChat Overview and Summary

In the case of R v Jenkin, the defendant was prosecuted for various criminal charges, and the trial took place in the relevant court. The central dispute involved the admissibility of certain evidence, specifically whether it constituted an admission by the defendant, and whether there was a reasonable excuse for the failure to record a conversation. The prosecution argued that the evidence should be admitted as it was an admission by the defendant, while the defence countered that the evidence was not an admission and there was no reasonable excuse for the failure to record the conversation.

The court was required to decide whether the evidence in question was an admission by the defendant, and if not, whether there was a reasonable excuse for the failure to record the conversation. The court also needed to consider the factors relevant to granting leave under s 192, including the length of the proceedings, the efficiency of the conduct of the trial, and the importance of the evidence in the context of the case.

The court held that the evidence was not an admission by the defendant, as it related to a different conversation than the one cross-examined on. The court further found that the matter did not arise out of the evidence given in cross-examination, and therefore, the failure to record the conversation was not a reasonable excuse. In assessing the application for leave under s 192, the court took into account the length of the trial, the inefficient conduct of the proceedings, and the relative unimportance of the evidence in the context of the case. The court concluded that granting leave would further extend the length of the proceedings, and therefore, refused the application.

The final orders of the court were that the evidence in question was not admitted as an admission by the defendant, and the application for leave under s 192 was refused. The trial proceeded without the contested evidence, and the court continued to consider the remaining evidence in determining the guilt or innocence of the defendant.

Orders