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Supreme Court 5 June 2018

R v Jenkin (No 15)

[2018] NSWSC 826

Homicide
CRIMINAL LAW LIMITS ON RE EXAMINATION WHETHER EVIDENCE AN ADMISSION WHERE COUNSEL CROSS EXAMINED ON DIFFERENT CONVERSATION

Citation: R v Jenkin (No 15) [2018] NSWSC 826
Court: Supreme Court of New South Wales
Date: 5 June 2018
Judge: Hamill J

Background

The accused was on trial for the murder of Mark Dower, along with related charges of soliciting murder and detaining a person for advantage. The Crown called Detective Liackman, the second officer in charge of the investigation, as a witness. During his evidence in chief, Liackman gave evidence about attending the Newcastle Police Station on 24 November 2015 to arrest the accused. No evidence of any conversation with the accused at the time of arrest was led in chief.

During cross-examination, defence counsel put a version of a conversation that allegedly took place at the counter of the police station at the time of arrest. The officer said he recalled the exchange differently but did not give his own version of it. After cross-examination concluded, the Crown sought to lead, through re-examination, evidence of a separate conversation in which the accused allegedly asked "who are they?" after being told the names of the victims in the charges he was facing.

The defence objected. Because the accused knew the named victims well, the Crown argued the response was disingenuous and capable of constituting an implied admission of consciousness of guilt. The question for the court was whether that evidence could be led in re-examination under section 39 of the Evidence Act 1995 (NSW), and if not, whether leave should be granted.

  • Whether the evidence the Crown sought to lead in re-examination arose "out of evidence given by the witness in cross-examination" under section 39(a) of the Evidence Act 1995 (NSW).
  • Whether the conversation constituted an implied admission, making it relevant.
  • Whether the failure to record the conversation was excused by the accused's refusal to be interviewed, under section 281 of the Criminal Procedure Act 1986 (NSW).
  • Whether leave should be granted under section 39(b) of the Evidence Act 1995 (NSW), having regard to the factors in section 192 of that Act.

Decision

Hamill J found that the evidence the Crown sought to lead in re-examination was a different conversation from the one put to the witness in cross-examination. The cross-examination concerned a specific exchange at the counter of the police station in which the accused complained about the investigation and denied killing the victim. The re-examination evidence concerned a distinct conversation about charging. Because that conversation was never raised in cross-examination, it did not arise "out of evidence given by the witness in cross-examination" within the meaning of section 39(a). Leave was therefore required under section 39(b).

On the relevance question, the court reached a tentative conclusion that the evidence was capable of constituting an implied admission. The accused's apparent ignorance of the victims' identities, in circumstances where he knew them well, could be characterised as a dishonest response demonstrating consciousness of guilt. On the section 281 recording question, the court also reached only a tentative conclusion that the accused's refusal to be interviewed may have provided a reasonable excuse for not recording the conversation. Both conclusions were expressly qualified because the defence had not had a full opportunity to make submissions.

On the leave question under sections 39(b) and 192, the court exercised its discretion to refuse leave. The trial had already run well beyond its estimated length. Granting leave would inevitably prompt further cross-examination of Liackman on the new account, and possibly an application to recall Detective Adams. That extension of proceedings weighed against granting leave. The court also found a degree of unfairness to the accused: the evidence surfaced the day before the Crown case was to close, and the accused had not had the opportunity to investigate whether cameras, audio recordings, or internal police documents might contradict the account.

Hamill J considered the evidence to be of limited importance to the Crown case. Had it been significant, the court observed, it would have been led through Detective Adams or in Liackman's evidence in chief. At most, the evidence went to one possible indicator of consciousness of guilt in a case where other such evidence already existed and where the apparent response could be explained by the accused's generally oppositional demeanour. While the seriousness of the murder charge weighed in favour of allowing the evidence, that factor did not outweigh the others. Leave was refused and the evidence ruled inadmissible.

Orders Made

No formal orders were recorded in the provided text beyond the ruling that the objection was upheld and the evidence was inadmissible.

Key Takeaways

  • Under section 39 of the Evidence Act 1995 (NSW), re-examination is confined to matters arising out of evidence actually given in cross-examination. Where cross-examination addressed one conversation, evidence of a different conversation cannot be led in re-examination as of right, even if both conversations occurred at the same time and place.
  • Leave to lead evidence in re-examination under section 39(b) is governed by the factors in section 192, including the importance of the evidence, any unfairness to the parties, and the effect on the length of proceedings.
  • A response by an accused that is arguably inconsistent with knowing the identity of victims the accused in fact knew well is capable of constituting an implied admission by demonstrating consciousness of guilt, though Hamill J's conclusion on this point was expressly tentative.
  • Where evidence of a conversation was not led through any witness during the Crown case in chief, the late emergence of that evidence at re-examination stage can give rise to procedural unfairness to the accused, who may have taken investigative steps had the evidence been adduced earlier.
  • Significant overrun of the trial estimate was treated as a material consideration weighing against the grant of leave, particularly where admission of the evidence would foreseeably generate additional cross-examination and applications to recall witnesses.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 39, 192
- Criminal Procedure Act 1986 (NSW), s 281

Cases
- R v Jenkin (No 14) [2018] NSWSC 837