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Supreme Court 10 May 2018

R v Jenkin (No 6)

[2018] NSWSC 751

Homicide
CRIMINAL LAW EVIDENCE LEAVE TO RE PRIOR INCONSISTENT STATEMENT WHETHER CROSS CONSIDERATION OF PREVIOUS AUTHORITIES

Citation: R v Jenkin (No 6) [2018] NSWSC 751
Court: Supreme Court of New South Wales
Date: 10 May 2018
Judge(s): Hamill J

Background

The accused faced charges of murder and conspiracy to murder arising from the death of a man whose body was allegedly found in the accused's flat. A key Crown witness, referred to by the pseudonym RS, gave evidence about three incidents: being present at the flat when the body was there, being asked to help move the body, and later attending to change the locks at the flat.

RS's credibility was squarely in issue. Cross-examination targeted her fear of criminal charges, her drug addiction and its effect on memory, and potential inconsistencies in her account. She had also been offered an inducement by police, and appeared to be a witness who could reasonably be supposed to have been criminally involved in moving the body.

The Crown sought leave under s 108(3) of the Evidence Act 1995 (NSW) to adduce evidence from another witness, Chae Allen, of a prior consistent statement by RS. The Crown anticipated that Allen would testify that RS had told him, shortly after the events, that she had been detained by the accused and had helped move the body at his request.

  • Whether the cross-examination of RS had suggested, expressly or by implication, that her evidence was fabricated, reconstructed, or the product of suggestion, so as to engage s 108(3)(b) of the Evidence Act 1995 (NSW).
  • Whether leave should be granted to adduce evidence of a prior consistent statement through another witness in order to re-establish RS's credibility.

Decision

Section 108(3) of the Evidence Act permits a party to adduce evidence of a prior consistent statement to re-establish a witness's credibility, but only where it has been suggested (expressly or by implication) that the witness fabricated the evidence, reconstructed it, or that it was the product of suggestion. Hamill J identified the governing principle from R v Whitmore [1999] NSWCCA 247: the mere denial of a witness's account does not, without more, necessarily suggest fabrication, reconstruction, or suggestion.

His Honour reviewed Pavitt v R [2007] NSWCCA 88 and Doyle v R [2014] NSWCCA 4, noting that those cases did not disturb the Whitmore principle. Both cases involved cross-examination that went well beyond suggesting the witness was simply wrong. The court also noted that Pavitt clarified there is no requirement that fabrication be explicitly raised or strongly inferred before the credibility rule is waived, but that the cross-examination must still reach the requisite threshold.

In this case, defence counsel conducted cross-examination with particular care, mindful that the s 108 issue was live. The cross-examination challenged whether RS had an erroneous belief about being detained, rather than asserting she had fabricated that belief. No suggestion of deliberate fabrication, reconstruction, or suggestion was put, either directly or by implication, on the significant issues going to her credibility.

Because the cross-examination did not meet the threshold required by s 108(3)(b), the credibility rule was not waived and leave to adduce Allen's evidence of the prior consistent statement was refused.

Orders Made

No formal orders were reproduced in the judgment text; the decision refused the Crown's application for leave under s 108(3) of the Evidence Act 1995 (NSW) to adduce evidence of the prior consistent statement.

Key Takeaways

  • Under s 108(3)(b) of the Evidence Act 1995 (NSW), a prior consistent statement may only be adduced to re-establish credibility where cross-examination has suggested, expressly or by implication, that the witness fabricated or reconstructed their evidence, or that it was the product of suggestion.
  • The Supreme Court confirmed that merely challenging the accuracy or reliability of a witness's evidence, without suggesting deliberate fabrication or reconstruction, does not satisfy the s 108(3)(b) threshold.
  • R v Whitmore [1999] NSWCCA 247 remains the foundational authority: denial of events without more does not necessarily imply fabrication, and the restraint shown by cross-examining counsel militates against the grant of leave.
  • Both Pavitt v R and Doyle v R are consistent with Whitmore, and involved cross-examination that clearly went further than merely suggesting the witness was wrong; neither decision lowers the threshold for engaging s 108(3)(b).
  • The distinction between asserting a witness held an erroneous belief and asserting that a witness deliberately fabricated evidence proved determinative here: only the former was put in cross-examination, and that was insufficient to engage the provision.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 108, 165(1)(d)

Cases
- R v Whitmore [1999] NSWCCA 247; (1999) 109 A Crim R 51
- Pavitt v R [2007] NSWCCA 88; (2007) 169 A Crim R 452
- Doyle v R; R v Doyle [2014] NSWCCA 4