Citation: R v Jenkin (No 16) [2018] NSWSC 908
Court: Supreme Court of New South Wales
Date: 5 June 2018
Judge: Hamill J
Background
This decision arises from a criminal trial in which the accused faced serious charges, including allegations involving the death of a man and the solicitation of murder. The Crown sought to tender statements from three witnesses who had died after making their statements, relying on the hearsay exception available under s 67 of the Evidence Act 1995 (NSW) for first-hand hearsay by unavailable persons.
Objections were taken to specific portions of each statement, raising questions about second-hand hearsay, the probative value of reconstructed accounts, and the risk of unfair prejudice where cross-examination was impossible.
Hamill J delivered ex tempore rulings and later provided this revised version of the reasons.
Legal Issues
- Whether specific portions of each deceased witness's statement were admissible under the hearsay exceptions in the Evidence Act 1995 (NSW), particularly s 65 and s 67
- Whether certain passages constituted inadmissible second-hand (or more remote) hearsay because they relayed what one absent person told another absent person
- Whether reconstructed accounts of conversations had sufficient probative value to justify admission, or whether they created a risk of unfair prejudice under s 137
- Whether evidence relevant to credibility could be admitted under ss 60 and 106, and whether its probative value was outweighed by the potential for unfair prejudice
Decision
Ken Jenkin's statement: The court admitted most of the relevant paragraphs but excluded two specific passages. The final sentence of paragraph 25, in which the witness relayed Stuart Cowan's opinion that an earlier account was "a load of bullshit" and "a figment of your brain," was excluded because nothing in the subsequent conversation indicated the accused adopted that statement, and Cowan himself was not available for cross-examination. The penultimate sentence of paragraph 30, which recorded that the witness thought the accused had said that Paul Turner believed the deceased might die from detoxing and being beaten up, was also excluded. The court found this passage had little or no probative value and carried real prejudice, being a reconstruction of a reconstruction within a rapid and discursive conversation.
Kylie Strang's statement: Two passages were contested. The first concerned whether Stuart Cowan found it difficult to inject heroin. The court admitted that passage in full, reasoning that admitting only the bare fact that Cowan had once taken heroin, without the qualification about his difficulty injecting, would be misleading. The second passage, which described the accused having "intimidation" over Cowan in connection with an alleged request to bring drugs into gaol, was excluded in part. The court found the language vague, its rational capacity to affect the facts in issue minimal, and its prejudicial potential sufficient to warrant exclusion, notwithstanding that directions could otherwise cure such risks.
A third statement (from a witness referred to in the latter part of the judgment): The Crown sought to use a statement containing a report of what a person named Dusan had told the witness about an alleged assault and stand-over by the accused. The stated purpose was to support the credibility of Dusan Vukadinovic under ss 60 and 106. The court accepted that the evidence was technically admissible through those provisions, combined with appropriate s 165 warnings, but excluded it under s 137 after conducting the required balancing exercise. The evidence added little to credibility material already before the court, and the potential for unfair prejudice from the inability to cross-examine on the hearsay assertions outweighed its minimal probative value. The ruling preserved only those parts of the statement recording what the witness herself saw, heard, or perceived.
Orders Made
• Evidence of paragraphs containing hearsay assertions about what Dusan told Ms Zonneveld is inadmissible
• Evidence is admissible only insofar as paragraphs 8 and 15 contain evidence of what Ms Zonneveld actually saw, heard or perceived
Key Takeaways
- Under s 67 of the Evidence Act 1995 (NSW), a deceased witness's statement may be admitted as first-hand hearsay, but the exception does not extend to second-hand hearsay embedded within that statement, such as a report of what one absent person told another absent person.
- Where a witness explicitly describes their account as a reconstruction of a disjointed conversation, and the reconstructed passage is qualified by phrases such as "I think Mark said," the court may find the probative value too low to justify admission.
- Admitting only part of a hearsay passage can itself create unfairness; the court here admitted a full description of a witness's heroin use because the partial version, standing alone, would have been misleading.
- Even where evidence is technically admissible for a non-hearsay credibility purpose under ss 60 and 106, the s 137 balancing exercise remains available to exclude it where probative value is minimal and prejudice from the absence of cross-examination is real.
- The availability of s 165 hearsay warnings does not automatically overcome a finding of unfair prejudice under s 137; in a judge-alone trial, Hamill J assessed the overall forensic utility of each disputed passage individually rather than relying on warnings as a universal cure.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 60, 65, 67, 106, 108, 137, 165(1)(a)
Cases cited: None stated in the judgment.