Citation: R v Jenkin (No 12) [2018] NSWSC 786
Court: Supreme Court of New South Wales
Date: 21 May 2018
Judge(s): Hamill J
Background
This decision arose during the murder trial of an accused known in the proceedings by the nickname "Jenko." A Crown witness, Paul Lincoln, was in the course of giving evidence-in-chief when the Crown made an application to cross-examine him under the Evidence Act 1995 (NSW).
Lincoln had provided a statement to police in May 2015 recording a conversation with the accused about the purchase of a red Subaru Impreza station wagon. According to that statement, the accused said the car would be good to sleep in, good to camp in, and good to move a body in.
When the Crown attempted on at least two, and possibly three, occasions to elicit the "good to move a body in" remark during examination-in-chief, Lincoln did not provide that evidence. He acknowledged only that the car would be good to camp in.
Legal Issues
- Whether the Crown should be granted leave under s 38(1)(b) and/or s 38(1)(c) of the Evidence Act 1995 (NSW) to cross-examine its own witness during examination-in-chief.
- Whether Lincoln's evidence in the witness box was unfavourable to the Crown or inconsistent with his earlier police statement.
- Whether Lincoln was making a genuine attempt to give evidence about matters within his knowledge.
Decision
Issue 1: Whether leave should be granted under s 38(1)
Hamill J observed that, despite the Crown's repeated attempts, Lincoln had not given evidence anywhere close to the "good to move a body in" remark, even though he had clearly turned his mind to that part of the conversation by acknowledging the camping comment (at [2]). The judge formed the view, based on watching and listening to the witness, that Lincoln was not making a genuine attempt to give evidence on this subject, which was a matter about which he could reasonably be supposed to have knowledge (at [3]). Hamill J noted that a remark of that kind would ordinarily stand out in a person's memory (at [3]).
Issue 2: Inconsistency with prior statement
Hamill J found it unnecessary to determine conclusively whether Lincoln's in-court evidence was inconsistent with his police statement, given that the finding of a lack of genuine attempt to give evidence was sufficient to ground the application. The judge noted, however, that the evidence likely also fell within that category (at [4]).
Issue 3: Scope and manner of cross-examination
Leave was granted under s 38(1), with Hamill J taking into account the relevant criteria under ss 38(1)(b) and (c) and the considerations prescribed by s 192, including the importance of the evidence and the nature of the proceedings (at [5]). The leave was not unlimited. The Crown was directed to begin with non-leading questions and, if those proved ineffective, could proceed to leading questions without making a further application (at [6]).
Orders Made
- Leave granted to the Crown to cross-examine its own witness, Paul Lincoln, pursuant to s 38(1) of the Evidence Act 1995 (NSW).
Key Takeaways
- Under s 38(1) of the Evidence Act 1995 (NSW), leave to cross-examine a party's own witness may be granted where the witness is not making a genuine attempt to give evidence about a matter within their knowledge, without the court needing to separately resolve whether the in-court evidence is technically inconsistent with an earlier statement (at [3]-[4]).
- A witness who consistently fails to give evidence of a particular statement, despite the examining party's repeated attempts and despite the witness clearly having the conversation in mind, may be found not to be making a genuine attempt to give evidence (at [2]-[3]).
- Section 192 considerations, including the importance of the evidence and the nature of the proceedings, inform the exercise of the court's discretion when granting leave under s 38(1) (at [5]).
- Leave under s 38(1) need not be unlimited. The Supreme Court here structured the leave to require non-leading questions in the first instance, with permission to move to leading questions only if that approach proved insufficient (at [6]).
- A remark of an unusual or striking character, such as a reference to moving a body in a vehicle, is the kind of statement a court may reasonably expect a witness to recall and give evidence about if genuinely attempting to do so (at [3]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 NSW, ss 38(1), 192
Cases
- Not stated