R v Jenkin (No 10) [2018] NSWSC 705

Supreme Court New South Wales

Medium Neutral Citation: R v Jenkin (No 10) [2018] NSWSC 705 Hearing dates: 17 May 2018 Decision date: 18 May 2018 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: 1. The evidence in paragraphs 9, 10, 13, 14 and 15 of Ms Mara's statement is not admissible as tendency evidence. 2. The evidence in paragraph 16 of Ms Mara's statement is admissible as tendency evidence. 3. The evidence of Ms Mara that the accused assaulted Mr Cowan is admissible but pursuant to s 136 Evidence Act 1995 its use will be limited to explain the nature of the relationship between the men and to place the actions of Mr Cowan in context. 4. I make a direction under s 5B Evidence (Audio and Audio Visual Links) Act 1998 that Ms Mara may give evidence at a place other than the courtroom. Catchwords: CRIMINAL LAW – tendency evidence – evidence of former partner of accused – evidence of domestic violence – where accused charged with murder – where allegation that accused detained victim and committed acts of violence on him – defence case that accused helping victim dry out from alcoholism – whether evidence has significant probative value – general allegations of violence not admissible – allegations involving detention and violence admissible

CRIMINAL LAW – uncharged acts of violence on alleged co-offender – evidence not admissible as tendency evidence – admissible to establish nature of relationship and explain conduct of the co-offender – order made limiting use of evidence

CRIMINAL LAW – whether witness should be permitted to give evidence by audio visual link – where witness alleged victim of violence – opinion of psychologist that procedure will minimise impact of trauma – where accused opposes direction – onus on prosecution – interests of administration of justice – relevant considerations – direction made Legislation Cited: Evidence Act 1995 (NSW), ss 97, 101, 135(c), and 136 Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B Cases Cited: Hughes v The Queen [2017] HCA 20, (2017) 92 ALJR 52 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Jenkin (No 8) [2018] NSWSC 704 Category: Procedural and other rulings Parties: Regina Mark Kenneth Jenkin Representation: Counsel: Mr M Fox (Crown) Mr P Lowe (Jenkin)