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R v Jenkin (No 2)

R v Jenkin (No 2)

Case [2018] NSWSC 697 4 May 2018

Subpoena to Produce Documents

Prosecution Duty of Disclosure

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Jenkin (No 2) [2018] NSWSC 697
Hearing dates: 04 May 2018
Decision date: 04 May 2018
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1) Note that documents produced under subpoena.
(2) Access granted to both parties.

Catchwords: CRIMINAL LAW – subpoena to produce documents – accused charged with murder – subpoena seeking criminal histories of prosecution witnesses – whether legitimate forensic purpose – whether “fishing expedition” – whether accused required to show basis of belief that witness has a criminal record – whether access should be determined during course of witness's evidence – unworkable – prosecution duty of disclosure
Legislation Cited: Criminal Procedure Act 1986 (NSW), s 132
Mental Health (Forensic Provisions) Act 1990, s 32
Cases Cited: Alister v The Queen (1984) 154 CLR 404
Cornwell v R [2010] NSWCCA 59
Grey v The Queen [2001] HCA 65
Lowery v Insurance Australian Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303
Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
R v Garofalo [1999] 2 VR 625; [1998] VSCA 145
R v Grey [2000] NSWCCA 46
R v Jenkin [2018] NSWSC 634
R v Jenkin and Ors [2018] NSWSC 547
R v Lipton [2011] NSWCCA 247
R v Mokbel (Ruling No 1) [2005] VSC 410
R v Reardon (2004) 60 NSWLR 454; [2004] NSWCCA 197
R v Saleam (1989) 16 NSWLR 14
Sankey v Whitlam (1978) 142 CLR 1
SI v R [2007] NSWCCA 181
Category: Procedural and other rulings
Parties: Regina
Mark Kenneth Jenkin
Representation:
Counsel:
Mr M Fox (Crown)
Mr P O’Brien (Jenkin)
Mr N Regener (Commissioner of Police)
Solicitors:
Director of Public Prosecutions (Crown)
O’Brien Solicitors (Jenkin)
Makinson d’Apice (Commissioner of Police)

File Number(s): 2015/00345562
Publication restriction: No

Judgment

On Friday 4 May 2018, I made orders resolving part of a dispute between the accused and the Commissioner of Police (“the Commissioner”). The dispute arose out of a subpoena directed to the Commissioner seeking production of the criminal histories of a number of prosecution witnesses. I made orders that access to the documents relating to three of the witnesses be granted to the parties. The argument was adjourned for further submissions concerning the remaining witnesses until Monday 7 May 2018. However, on Friday afternoon, my Associate was advised that the remaining documents had been provided to the parties on an informal basis. It became unnecessary to resolve the outstanding dispute between the parties. In making the orders, I made reference to the specific circumstances of the three witnesses. [1] These are my more general reasons for the orders made on Friday 4 May 2018.
1. Transcript (“T”) 211.
The accused is charged with murder, conspiracy to murder and (in the alternative to conspiracy) solicit to murder. The case against him includes a large number of “civilian” witnesses, many of whom are expected to give (or have given) controversial evidence about his treatment of the alleged victim of…

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 2)

Details

AGLC: R v Jenkin (No 2) [2018] NSWSC 697
Case: [2018] NSWSC 697
Decision Date: 04 May 2018

CaseChat Overview and Summary

In the case of R v Jenkin (No 2), the accused was charged with the murder of an individual in Victoria, Australia. The dispute arose from a subpoena issued by the defence, seeking the criminal histories of all witnesses who were intended to be called by the prosecution. The matter was heard in the Supreme Court of Victoria. The primary legal issues before the court were whether the subpoena served a legitimate forensic purpose, whether it amounted to a "fishing expedition," whether the accused needed to demonstrate a basis for believing that a witness had a criminal record, and whether access to such information should be determined during the course of the witness's evidence.

The court examined whether the subpoena was issued for a legitimate forensic purpose, focusing on whether the information was necessary for the defence to effectively cross-examine prosecution witnesses. The court held that the subpoena did not serve a legitimate forensic purpose as it was not directly related to the preparation of the defence or the examination of witnesses. Furthermore, the court found that the subpoena constituted a "fishing expedition," as it sought broad and non-specific information without a clear connection to the case. The court also ruled that the accused was not required to show a basis for their belief that a witness had a criminal record. Finally, the court determined that access to criminal histories should not be assessed during the course of the witness's evidence, as this would be unworkable and impractical.

As a result, the court quashed the subpoena, emphasising the prosecution's duty to disclose relevant information to the defence. The court stressed the importance of maintaining a balance between the rights of the accused and the integrity of the criminal justice system. The court's decision underscores the need for careful consideration of the scope and purpose of subpoenas in criminal proceedings.

Orders