R v Jenkin (No 16)

The case of R v Jenkin (No 16) involved a criminal prosecution where the admissibility of certain statements was in issue. The statements were sought to be tendered in evidence by the prosecution, but the defence objected on the basis that they amounted to inadmissible hearsay. The case was heard in the High Court of Australia, which was asked to determine the appropriate legal test for identifying the "asserted fact" in a statement, particularly where the statement is a reconstruction of events. The outcome of this determination was crucial in assessing whether the statements in question were first or second-hand hearsay, and therefore admissible.

The central legal issue was the proper identification of the "asserted fact" for the purposes of determining whether the statements were first or second-hand hearsay. The Court held that the "asserted fact" is the fact that the witness has made the statement to the person recording it, rather than the content of the statement itself. This meant that if the witness was not asserting the truth of the content of the statement, it could not be considered hearsay. The Court further held that the fact that a statement is a reconstruction does not necessarily mean that it is hearsay, as long as the witness is not asserting the truth of the reconstructed events.

The Court's reasoning was that the "asserted fact" must be identified by reference to the purpose for which the statement is being tendered. If the purpose is to prove the truth of the content of the statement, then the statement is hearsay. However, if the purpose is to prove that the witness made the statement, then the statement is not hearsay. The Court found that in this case, the purpose of tendering the statements was to prove the content of the statements, rather than simply that the witnesses made them. Therefore, the statements were hearsay and inadmissible unless an exception applied. The Court held that the statements were not caught by any of the exceptions to the hearsay rule, and were therefore inadmissible.