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Supreme Court 23 May 2018

R v Jenkin (No 14)

[2018] NSWSC 837

Assault & violence
CRIMINAL LAW EVIDENCE DOCUMENTARY EVIDENCE PROOF OF CONTENTS OF DOCUMENTS OPERATION OF S 48 EVIDENCE ACT WHETHER VIDEO FILE A DOCUMENT

Citation: R v Jenkin (No 14) [2018] NSWSC 837
Court: Supreme Court of New South Wales
Date: 23 May 2018
Judge: Hamill J

Background

The accused stood trial for murder. The Crown sought to tender a video file recovered from a mobile telephone seized from the accused at the time of his arrest. The file depicted the deceased in the accused's bathroom several weeks before the deceased's body was found, and the Crown alleged the recording showed the deceased being abused and humiliated.

The original video file on the telephone could not be played, either on the device itself or when first extracted by police using the Cellebrite forensic software programme. A Crown expert, Senior Constable Yang, used a separate recovery programme called Untrunc to produce a playable version of the file. The recovered file played as a continuous visual and audio recording, although the audio cut out towards the end.

The accused objected to the tender of the recovered file on multiple grounds, including under sections 47 and 48 of the Evidence Act 1995 (NSW), and supplementary grounds under sections 135 and 137 of the same Act. Hamill J heard a voir dire (a preliminary hearing on admissibility) before ruling on the objection.

  • Whether sections 47 and 48 of the Evidence Act 1995 (NSW) rendered the recovered video file inadmissible as proof of the contents of a document.
  • Whether the relevant "document" for the purposes of sections 47 and 48 was the original corrupted file or the recovered file produced by Untrunc.
  • Whether section 47(2) (copy not an exact copy but identical in all relevant respects) or section 48(4) (document not available to the party) provided an alternative basis for admissibility.
  • Whether the evidence should be excluded under section 135 (danger of misleading) or section 137 (unfair prejudice outweighing probative value).

Decision

Sections 47 and 48: the "document in question"

Hamill J reasoned that the correct way to understand the tender was that the recovered file produced by Untrunc was itself the relevant document, not merely a copy of the corrupted original. On this analysis, the Crown was tendering the document in question directly, and section 48 operated permissively to allow that tender rather than as an exclusionary rule requiring proof that the recovered file precisely matched the corrupted one.

Section 146 of the Evidence Act, which creates a presumption that a device or process produces the result it would ordinarily produce in the absence of evidence to the contrary, supported the inference that Untrunc produced an accurate, if possibly truncated, version of the original recording. No contrary evidence was led by the defence.

Alternative bases under sections 47(2) and 48(4)

Even on the assumption that the relevant document was the corrupted, unplayable file, Hamill J found two alternative pathways to admissibility. Under section 47(2), the recovered file qualified as a copy that, though not exact, was identical in all relevant respects to the original. Under section 48(4), because the original corrupted file was not available to the Crown in a playable form, the provision permitted evidence of the contents of that document, consistent with the Victorian Court of Appeal's reasoning in Wade v The Queen regarding lost CCTV footage.

Sections 135 and 137: probative value versus prejudice

Hamill J found no substance in the supplementary objections. The recording had significant probative value, bearing directly on the factual dispute about the circumstances in which the deceased came to be at the accused's unit. The fact that the audio cut out at the end did not render the evidence misleading or unfairly prejudicial, particularly given that Hamill J was sitting as the tribunal of fact and was capable of understanding the limitations of the recording in context.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under sections 47 and 48 of the Evidence Act 1995 (NSW), the identity of the "document in question" matters: where a recovery programme produces a new, playable file from a corrupted original, that recovered file may itself constitute the document being tendered rather than merely a copy of an unavailable original.
  • Section 146 of the Evidence Act supports a presumption that a recovery programme (such as Untrunc) produced the result it would ordinarily produce, in the absence of evidence to the contrary, lending authenticity to the recovered file without requiring technical proof of the programme's precise operation.
  • Where the original file is treated as the "document in question" and is unavailable in playable form, both section 47(2) (copy identical in all relevant respects) and section 48(4) (document not available to the party) may provide independent alternative bases for admissibility, consistent with Wade v The Queen [2014] VSCA 13.
  • A challenge to an expert's selection of one recovery programme over others does not, without more, establish a deficiency in expertise sufficient to attract the opinion evidence exclusions in sections 76 to 79 of the Evidence Act.
  • High probative value of electronic evidence depicting alleged mistreatment of a deceased person shortly before death can outweigh the risk of prejudice or misleading effect under sections 135 and 137, particularly where the tribunal of fact is a judge sitting alone.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 47, 48, 51, 76, 77, 78, 79, 135, 137 and 146

Cases
- Wade v The Queen [2014] VSCA 13; (2014) 29 A Crim R 29