R v Jenkin (No 5) - [2018] NSWSC 730

Supreme Court

New South Wales

Medium Neutral Citation: R v Jenkin (No 5) [2018] NSWSC 730
Hearing dates: 09 May 2018
Decision date: 09 May 2018
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Leave granted under s 32(1) of the Evidence Act.

Catchwords: CRIMINAL LAW – Evidence – leave to revive memory by use of document – whether memory of witness exhausted – “Fuck, I can’t remember what I said” – insightful self-assessment of the quality of witness’s memory – “heaps of drugs” – whether “fresh in the memory”
Legislation Cited: Evidence Act 1995 (NSW), ss 32, 66(2A), 192
Cases Cited: Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105
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 9 May 2018, I granted leave under s 32 of the Evidence Act1995 (NSW) to allow a witness (“AR”) to use a document to revive his memory in the course of giving evidence. These are my reasons for granting leave.
When the issue first arose counsel for the accused raised no objection, saying “[u]nder the Evidence Act, I concede [that course] is available to the Crown as a tool”: Transcript (T) p 385. The Crown then asked the witness:

Q: Is your memory exhausted as to your recollection of conversations you said you had with Mr Jenkin?
A: Exhausted? I don’t understand what you’re saying. You’re saying “exhausted”. What do you mean by “exhausted”.
Q: You forgot?
A: Yeah, I can’t remember.

Counsel for the accused then asked to raise a matter in the absence of the witness and the following 16 pages of transcript (T 385-401) records the evidence then given on the voir dire and the submissions made in opposition to the grant of leave.
Section 32 provides:

32 ATTEMPTS TO REVIVE MEMORY IN COURT
(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account:
(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and
(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that:
(i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or
(ii) was, at such a time, found by the witness to be accurate.

(3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness…

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 5)

Details

AGLC: R v Jenkin (No 5) [2018] NSWSC 730
Case: [2018] NSWSC 730
Decision Date: 09 May 2018

CaseChat Overview and Summary

In the case before the court, the respondent, a police officer, was prosecuted for assault and deprivation of liberty. The respondent claimed the two victims had consented to their treatment and that any injuries were caused by an accidental fall. The primary evidence against the respondent came from the two victims, who were unable to recall significant details of the incident. The trial judge denied the Crown’s request to allow the victims to read their statements to refresh their memories during their cross-examination. The Crown appealed the trial judge's decision, arguing the trial judge should have allowed the victims to read their statements to refresh their memories.

The legal issue before the court was whether the trial judge should have allowed the victims to read their prior statements to refresh their memories. The court considered the applicable common law, as well as the statutory provisions for allowing witnesses to use documents to refresh their memories. The court also considered the testimony of the victims, who stated they could not remember what they had said, and the extent to which their memories had been impaired by drug use. The court examined the trial judge's assessment of the victims' memories and whether it was accurate.

The court found that the trial judge's assessment of the victims' memories was accurate, and that the victims were unable to recall significant details of the incident. The court held that the trial judge was correct in refusing the Crown's request to allow the victims to read their statements to refresh their memories. The court found that the victims' memories were exhausted, and that the statements were not "fresh in the memory". The court noted the victims' own assessment of the quality of their memories and found it was insightful, particularly in light of the amount of drugs the victims had taken. The court held that the trial judge did not err in refusing the Crown's request.

The court dismissed the Crown's appeal. The convictions and sentences of the respondent were upheld.

Orders