R v Jenkin (No 6) - [2018] NSWSC 751

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Jenkin (No 6) [2018] NSWSC 751
Hearing dates: 10 May 2018
Decision date: 10 May 2018
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Leave under s 108 refused.

Catchwords: CRIMINAL LAW – evidence – leave to re-establish credibility through another witness – prior inconsistent statement – whether cross-examination raised fabrication, reconstruction or suggestion – consideration of previous authorities – credibility rule not waived
Legislation Cited: Evidence Act 1995 (NSW), ss 108, 165(1)(d)
Cases Cited: Doyle v R; R v Doyle [2014] NSWCCA 4
Pavitt v R [2007] NSWCCA 88; (2007) 169 A Crim R 452
R v Whitmore [1999] NSWCCA 247; (1999) 109 A Crim R 51
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)

The witness, RS, has just finished giving evidence. She has given evidence essentially all day today. During the evidence of a previous witness, Chae Allen, the parties raised the possibility of an application by the Crown pursuant to s 108 of the Evidence Act 1995 (NSW) whereby Mr Allen would be asked questions calculated to re-establish the credibility of RS adducing through him evidence of a prior consistent statement of RS. The cross-examination of Mr Allen has commenced but not concluded. The parties agreed that any question under s 108 should be deferred until RS had given evidence. At the conclusion of RS's evidence, the Crown Prosecutor sought leave under s 108(3) of the Evidence Act to adduce evidence from Mr Allen of a conversation in which RS said things which were consistent with parts of her evidence which were, in some respects, challenged in cross-examination.
RS's evidence essentially goes to three incidents. The first is that she says that she went to the flat of the accused, who is charged with the murder of Mark Dower (and indeed conspiracy to murder RS in the course of the investigation into Mr Dower’s death). She says she was shown a dead body, it being the Crown case that the body was that of Mr Dower.
RS gave extensive evidence as to that, including that she at least believed that she was being detained in the flat. She gave evidence that she asked to leave, and Mr Jenkin would not allow her. She gave evidence that she was afraid of him, and that she had heard movement in what she believed to be the lock on the front door of his flat. This caused her to believe that the door was locked to prevent her from leaving.
Her evidence was that she was at the flat for many hours, although it became difficult to determine precisely how long she says she was there, other than that she arrived at night and left the following day. So that is the…

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 6)

Details

AGLC: R v Jenkin (No 6) [2018] NSWSC 751
Case: [2018] NSWSC 751
Decision Date: 10 May 2018

CaseChat Overview and Summary

In the matter of R v Jenkin (No 6), the defendant was charged with criminal offences, and the case was heard in the relevant court. The dispute centred on the defendant's credibility and the admissibility of evidence provided by another witness. The court had to determine whether the defendant could re-establish their credibility through the testimony of another witness, considering a prior inconsistent statement that had been raised during cross-examination.

The primary legal issue was whether the cross-examination of the defendant had sufficiently raised concerns about the fabrication, reconstruction, or suggestion of evidence to warrant allowing another witness to rebut these allegations. The court was required to consider the relevant authorities on the credibility rule and assess whether these authorities applied to the facts of the case. It was also necessary to determine whether the defendant had waived their right to rely on the credibility rule.

The court carefully examined the previous authorities and found that they did not support the defendant's position. It concluded that the cross-examination did not sufficiently raise concerns about the fabrication, reconstruction, or suggestion of evidence. Consequently, the court ruled that the credibility rule was not waived and denied the defendant leave to re-establish their credibility through the testimony of another witness. The court's decision was based on the absence of compelling evidence that the defendant's credibility had been sufficiently undermined during cross-examination.

The court's final orders were that the defendant was not permitted to call another witness to re-establish their credibility. The ruling emphasised the importance of the credibility rule in criminal proceedings and the need for clear evidence to warrant its application.

Orders