Citation: R v Jenkin (No 17) [2018] NSWSC 907
Court: Supreme Court of New South Wales
Date: 5 June 2018
Judge(s): Hamill J
Background
This decision arose during a criminal trial in which the accused faced charges relating to the death of the deceased. A witness had given evidence on 8 May 2018 concerning an alleged assault by the accused on the deceased, specifically an incident involving kicking.
During cross-examination, the witness claimed she had reported that incident to a detective, who allegedly declined to include it in her statement. The detective later gave evidence denying this account. Cross-examination also touched on the witness's criminal history, primarily to highlight that she had been dealt with on several occasions under the mental health diversion provisions of the Mental Health (Forensic Provisions) Act 1990 (NSW).
At the close of that cross-examination, defence counsel reserved the right to recall the witness, and the court did not formally excuse her from her subpoena. The defence subsequently issued subpoenas for the witness's mental health records and obtained a substantial volume of material. When the witness was required to return for further cross-examination, she did not appear.
Legal Issues
- Whether the court should compel the witness's attendance on the outstanding subpoena given her failure to appear for further cross-examination
- What course was available to the court when the accused required further cross-examination of a witness who was unable to attend due to mental health concerns
- Whether the witness's earlier evidence should be withdrawn entirely from the jury's consideration
Decision
The Crown tendered a letter from the Shellharbour Hospital Mental Health Rehabilitation Unit confirming that the witness was an inpatient and that further court appearances would likely worsen her mental state and impede her recovery. The letter suggested that written testimony might be an alternative, but the court was not asked to explore that option further.
Hamill J acknowledged that the remaining courses open to him were limited. The witness had not been excused from her subpoena, and the accused had a legitimate interest in conducting further cross-examination. In principle, the court retained the power to enforce attendance through the subpoena, but his Honour expressed reluctance to do so given the clear medical evidence about the impact court attendance was having on the witness.
The Crown Prosecutor took the position, described by Hamill J as both compassionate and responsible, that the witness's evidence should be withdrawn from the trial entirely. The court accepted this course and directed that the evidence given by the witness, recorded at pages 348 to 370 of the transcript, was to be disregarded in its entirety.
Orders Made
- The evidence given by the witness recorded at transcript pages 348 to 370 was to be disregarded in its entirety.
Key Takeaways
- Where a witness has not been excused from a subpoena and the accused requires further cross-examination, a court in a criminal trial retains the power to enforce attendance, though that power will be exercised with caution where credible medical evidence indicates the witness's mental health would be significantly harmed by further attendance.
- Withdrawal of a witness's evidence entirely can be an appropriate outcome where the Crown consents, the accused has been unable to complete cross-examination, and compelling attendance is not a viable option.
- The Supreme Court treated the Crown's consent to withdrawal of the evidence as decisive, relieving the court of the need to resolve the tension between enforcing the subpoena and protecting the witness's welfare.
- A medical certificate from a treating clinical team, confirming inpatient status and the likely adverse impact of further court appearances, was accepted as sufficient basis to justify the procedural course taken.
- Dealing with a witness under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) on multiple prior occasions was treated as a relevant matter going to the witness's credit, not simply her character.
Legislation and Cases Referenced
Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
Cases cited:
No cases were cited in this decision.