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Supreme Court 18 May 2018

R v Jenkin (No 11)

[2018] NSWSC 790

Homicide
CRIMINAL LAW EVIDENCE THRILLS OF BEING A CRIMINAL ADVOCATE SURPRISES WHETHER UNFAIR PREJUDICE ASSESSMENT OF PROBATIVE VALUE

Citation: R v Jenkin (No 11) [2018] NSWSC 790
Court: Supreme Court of New South Wales
Date: 18 May 2018
Judge(s): Hamill J

Background

The accused, Mark Jenkin, was on trial for murder and related offences, including a conspiracy to murder a witness. The Crown alleged that the deceased, Mark Dower, had been detained in the accused's unit and assaulted there in the course of a scheme to obtain money from his cash card account. The defence maintained that Dower had been present voluntarily and that any head injury resulted from a fall.

A Crown witness, who had been in a relationship with the accused in late 2014, was giving evidence by audio visual link. Her prior witness statement made no mention of the deceased at all. During the course of her evidence, and without any prior disclosure to the defence, she began describing having seen the accused assault Dower in a neighbouring unit.

Two days before she gave this evidence, the witness had told a detective that she had recognised Dower from media coverage and recalled further matters since "becoming clean." She declined to make a formal statement, preferring instead to give the evidence in court. Defence counsel objected immediately, raising concerns about fairness and the admissibility of the evidence.

  • Whether the late-emerging, undisclosed testimony created unfair prejudice to the accused sufficient to outweigh its probative value under section 137 of the Evidence Act 1995 (NSW).
  • Whether the section 192 criteria, which govern the granting of leave, permission, or directions, had any additional work to do in this context, and if so, whether they altered the admissibility ruling.

Decision

Hamill J first assessed the probative value of the witness's evidence on the assumption it would be accepted, as required by High Court authority. The evidence bore directly on the central issue at trial: the nature of the relationship between the accused and the deceased. The Crown's case was that the accused had detained and assaulted Dower for financial gain; the defence said the relationship was benign. Evidence that the accused had struck Dower in the context of demanding money was, if accepted, highly probative of the Crown's account.

Against that high probative value, the judge acknowledged a genuine danger of unfair prejudice arising from the very late notice. However, the judge identified several countervailing factors. Defence counsel was experienced, held substantial material with which to attack the witness's credibility, and had an array of obvious lines of cross-examination available: why the incident was never mentioned before, why the detective's account omitted any reference to money, and why the witness described a violent incident with the accused occurring at a time when records showed he was in gaol. Those tools materially reduced the practical unfairness.

The judge also noted that the court retained procedural remedies, including adjournment, to address any residual unfairness. Weighing the high probative value against the manageable danger of prejudice, Hamill J held that section 137 did not require exclusion and the evidence was admissible.

On the section 192 question, the judge expressed doubt about whether an admissibility ruling under section 137 engaged section 192 at all, but proceeded on the assumption it did out of caution, following Stanoevski v The Queen. Applying the section 192(2) criteria, the judge found the evidence would not unduly lengthen the trial, was of genuine importance, and arose in serious criminal proceedings where important evidence should ordinarily be received even when disclosed late. The section 192 analysis did not alter the outcome.

Orders Made

No orders were made in this decision. The ruling was a procedural admissibility determination confirming that the witness's evidence would be allowed to be led.

Key Takeaways

  • Under section 137 of the Evidence Act 1995 (NSW), probative value must be assessed on the assumption that the evidence is accepted, regardless of factors that might make it appear unreliable, including unusual or late-emerging circumstances surrounding its disclosure.
  • Late disclosure of witness evidence does not automatically produce unfair prejudice sufficient to outweigh probative value, particularly where experienced counsel holds material capable of mounting a strong credibility challenge.
  • The availability of procedural remedies, such as adjournment or directions, is a relevant consideration in assessing whether any danger of unfair prejudice can be cured rather than requiring exclusion.
  • Where section 192 is engaged, the nature of the proceedings carries weight: in a serious criminal trial, important evidence will ordinarily be received even when it emerges late, provided fairness can be preserved by other means.
  • Hamill J observed, as a general matter, that lay witnesses in criminal trials not infrequently give evidence that has never previously been disclosed, and that criminal advocates are expected to respond to such surprises through skilled cross-examination.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 137, 192

Cases:
- R v Jenkin (No 10) [2018] NSWSC 705
- Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4