AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Supreme Court 4 May 2018

R v Jenkin (No 2)

[2018] NSWSC 697

HomicidePublic order & justice offences
CRIMINAL LAW SUBPOENA TO PRODUCE DOCUMENTS ACCUSED CHARGED WITH MURDER WHETHER LEGITIMATE FORENSIC PURPOSE WHETHER “FISHING EXPEDITION” UNWORKABLE

Citation: R v Jenkin (No 2) [2018] NSWSC 697
Court: Supreme Court of New South Wales
Date: 4 May 2018
Judge: Hamill J

Background

The accused faced charges of murder, conspiracy to murder, and soliciting murder. The prosecution case included a large number of civilian witnesses, many expected to give controversial evidence about the accused's treatment of the alleged murder victim. Part of the defence case was that several of those witnesses had themselves assaulted the deceased.

Shortly before and during the trial, the accused's legal team served a subpoena on the NSW Commissioner of Police seeking the criminal histories of thirty named prosecution witnesses. The subpoena was filed only one clear working day before the trial commenced, and the matter came before Hamill J on the fifth day of the trial. By that point, three of the witnesses had already given, or commenced giving, their evidence.

The Commissioner resisted compliance with the subpoena, arguing there was no demonstrated basis for believing those witnesses had criminal records and that access to any documents produced should be deferred or redacted. The dispute disrupted the trial: one witness had already been excused after falsely denying any convictions for violence, and two others had their evidence interrupted while the subpoena issue was resolved.

  • Whether the accused had a legitimate forensic purpose in issuing the subpoena, or whether it amounted to an impermissible "fishing expedition"
  • Whether the accused was required to demonstrate a specific basis for believing each witness had a criminal record before the subpoena could be complied with
  • Whether access to produced documents should be deferred until each witness reached the relevant point in cross-examination, or whether redaction by the Commissioner was appropriate
  • The scope of the prosecution's duty to disclose the criminal histories of prosecution witnesses to the accused

Decision

Hamill J rejected the Commissioner's argument that the subpoena amounted to a fishing expedition. Applying the well-established test from Alister v The Queen, his Honour found it was "on the cards" that the documents sought would materially assist the accused in his defence. The accused had provided a table particularising the forensic purpose behind each request, and the circumstances of the witnesses, including known mental health and substance issues, conduct impugned in the prosecution brief, and one witness already caught in a false denial about his criminal record, provided sufficient foundation.

His Honour also rejected both of the Commissioner's proposed alternatives for restricted access. The proposal that documents be withheld until the relevant point in cross-examination was described as unworkable: defence counsel needs access to criminal histories before cross-examination begins, not during it, in order to conduct meaningful and informed questioning. The redaction proposal was similarly declined, as the accused had already particularised why the full records were relevant to credibility and to the defence case on the assaults.

On the Crown's disclosure duty, Hamill J observed that several criminal histories ultimately obtained under the subpoena had not been disclosed to the prosecutor by investigating police, and had not been passed on to the accused. His Honour noted, without criticising the Crown Prosecutor personally, that where a witness is expected to give adverse or controversial evidence, or where the witness's own conduct is placed in issue in the prosecution brief, the prosecution should disclose that witness's criminal history to the defence at an early stage. That obligation requires investigating police to first disclose the material to the prosecutor.

Access was granted to the criminal histories of the three witnesses who had already given or commenced giving evidence. The dispute concerning the remaining witnesses was resolved informally before the adjourned argument became necessary.

Orders Made

  • Access to documents produced under the subpoena, relating to three named witnesses who had already given or commenced giving evidence, was granted to the parties.
  • The argument concerning the remaining witnesses was adjourned, but was subsequently resolved informally without further orders being required.

Key Takeaways

  • Hamill J confirmed that the applicable test for access to subpoenaed documents is whether it is "on the cards" that the documents will materially assist the accused, drawn from Alister v The Queen (1984) 154 CLR 404.
  • An accused person is not required to prove positively that a witness has a criminal record before a subpoena for that record can be complied with; a particularised statement of forensic purpose, supported by the circumstances of the case, is sufficient.
  • Deferring access to criminal histories until the moment in cross-examination when they become relevant is unworkable: effective cross-examination requires prior review of the material, and such a condition would render the subpoena practically useless.
  • The Crown's duty of disclosure extends to the criminal histories of prosecution witnesses, particularly where a witness is expected to give adverse or controversial evidence or where the witness's own conduct is placed in issue elsewhere in the prosecution brief. That duty depends, in turn, on investigating police disclosing the material to the prosecutor.
  • Late service of subpoenas seeking such material carries real forensic risk: the timing of this subpoena disrupted the trial, limited the accused's ability to cross-examine one witness who had already been excused, and fragmented the evidence of two others.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 132
- Mental Health (Forensic Provisions) Act 1990, s 32

Cases
- 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