Citation: R v Jenkin (No 4) [2018] NSWSC 676
Court: Supreme Court of New South Wales
Date: 7 May 2018
Judge: Hamill J
Background
The accused stood trial, before a judge sitting alone, on charges that included soliciting murder and conspiracy to murder. The prosecution alleged that the accused was connected to co-accused persons, including men referred to as Paul Turner and Cowan, in a scheme involving the procurement of heroin to kill a witness.
During the trial, the statement of a police witness, Matthew Beretov, was tendered and admitted into evidence as Exhibit F without objection. The statement included a passage reproducing messages found on the accused's phone. Several of those messages contained references to a person named "Pauly" or "Paul", and one referenced a person known as "Desi".
After the statement had already been admitted, the accused raised a belated objection to paragraph 10, specifically the portion containing the phone messages. The objection was based on the fact that the messages appeared to suggest the accused was involved in drug dealing, carrying potential for unfair prejudice.
Legal Issues
- Whether a belated objection to evidence already admitted without objection should nevertheless be ruled upon.
- Whether the contested phone messages were relevant to the Crown's case.
- Whether the probative value of the messages outweighed their potential prejudicial effect, particularly given their capacity to suggest the accused was engaged in drug dealing.
Decision
Hamill J acknowledged the procedural irregularity, describing the failure to object at the time of tender as an "inexplicable glitch." Despite that, the court accepted that it was appropriate to rule on admissibility once the issue had been raised, even at that late stage.
On relevance, the court was satisfied that the messages carried genuine probative value. References to "Pauly" and "Paul" in multiple messages were capable of establishing a connection between the accused and the alleged co-offender Paul Turner. The reference to "Desi" was relevant because the Crown alleged that someone by that nickname was approached by another co-offender to purchase heroin for the purpose of killing a witness, which was directly at issue in the murder-related counts.
On the question of prejudice, the court identified three factors that weighed against exclusion. First, the Crown expressly disclaimed any intention to use the messages as evidence of bad character by way of drug dealing. Second, the accused himself had put to a prior witness during cross-examination that the witness had purchased drugs from the accused, which reduced the force of any prejudice argument. Third, and significantly, the trial was proceeding before a judge alone, which meant the court could apply the evidence in a limited and targeted way, using it only to establish connections between the accused and other relevant parties, and no more.
Hamill J concluded that the probative value of the evidence outweighed its potential prejudice, and that Exhibit F should remain in its current form. The witness was permitted to continue reading his statement.
Orders Made
No formal orders were made in this decision. Hamill J ruled that Exhibit F would remain in evidence in its existing form and that the witness could continue giving evidence.
Key Takeaways
- A belated objection to evidence already admitted without objection does not automatically preclude the court from ruling on admissibility; the Supreme Court here treated it as appropriate to do so once the issue was properly raised.
- Probative value can outweigh prejudice where evidence is capable of establishing connections between an accused and co-accused through repeated references to named individuals, even if the same evidence also suggests criminality beyond the charged offences.
- Where the Crown expressly limits the purpose for which it relies on potentially prejudicial evidence, that concession is a relevant factor in the admissibility balancing exercise.
- The judge-alone trial context was treated as a meaningful safeguard: the court specifically noted its capacity to receive and use evidence in a confined, non-prejudicial way, an advantage not available in a jury trial.
- An accused's own forensic choices, such as putting to a witness in cross-examination that the witness purchased drugs from the accused, can reduce the weight of a subsequent prejudice objection relating to drug-dealing material.
Legislation and Cases Referenced
No legislation or cases were cited in the decision text or metadata.