R v Jenkin (No 6) [2018] NSWSC 751

Supreme Court New South Wales

Medium Neutral Citation: R v Jenkin (No 6) [2018] NSWSC 751 Hearing dates: 10 May 2018 Decision date: 10 May 2018 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Leave under s 108 refused. Catchwords: CRIMINAL LAW – evidence – leave to re-establish credibility through another witness – prior inconsistent statement – whether cross-examination raised fabrication, reconstruction or suggestion – consideration of previous authorities – credibility rule not waived Legislation Cited: Evidence Act 1995 (NSW), ss 108, 165(1)(d) Cases Cited: Doyle v R; R v Doyle [2014] NSWCCA 4 Pavitt v R [2007] NSWCCA 88; (2007) 169 A Crim R 452 R v Whitmore [1999] NSWCCA 247; (1999) 109 A Crim R 51 Category: Procedural and other rulings Parties: Regina Mark Kenneth Jenkin Representation: Counsel: Mr M Fox (Crown) Mr P Lowe (Accused)

Solicitors: Director of Public Prosecutions NSW (Crown) O'Brien Solicitors (Accused) File Number(s): 2015/00345562 Publication restriction: No

Ex Tempore Judgment (revised) 1. The witness, RS, has just finished giving evidence. She has given evidence essentially all day today. During the evidence of a previous witness, Chae Allen, the parties raised the possibility of an application by the Crown pursuant to s 108 of the Evidence Act 1995 (NSW) whereby Mr Allen would be asked questions calculated to re-establish the credibility of RS adducing through him evidence of a prior consistent statement of RS. The cross-examination of Mr Allen has commenced but not concluded. The parties agreed that any question under s 108 should be deferred until RS had given evidence. At the conclusion of RS's evidence, the Crown Prosecutor sought leave under s 108(3) of the Evidence Act to adduce evidence from Mr Allen of a conversation in which RS said things which were consistent with parts of her evidence which were, in some respects, challenged in cross-examination. 2. RS's evidence essentially goes to three incidents. The first is that she says that she went to the flat of the accused, who is charged with the murder of Mark Dower (and indeed conspiracy to murder RS in the course of the investigation into Mr Dower's death). She says she was shown a dead body, it being the Crown case that the body was that of Mr Dower. 3. RS gave extensive evidence as to that, including that she at least believed that she was being detained in the flat. She gave evidence that she asked to leave, and Mr Jenkin would not allow her. She gave evidence that she was afraid of him, and that she had heard movement in what she believed to be the lock on the front door of his flat. This caused her to believe that the door was locked to prevent her from leaving. 4. Her evidence was that she was at the flat for many hours, although it became difficult to determine precisely how long she says she was there, other than that she arrived at night and left the following day. So that is the first piece of her evidence. 5. The second incident referred to in evidence concerned her allegation that Mr Jenkin asked her to help him move the body of the deceased person from the bathtub that she had seen on the first occasion. This included evidence, given in cross-examination, that she had in fact offered to help him move the body and to clean up the bathroom. She claimed that she essentially did that in order to keep him happy. She wanted him to believe that she was helping him, again because she was scared of him. 6. The third incident on which she gave evidence, which is of less relevance to the present application, was that RS says that she and a number of others were asked to go around to Mr Jenkin's unit sometime later to change the locks (and that they did so). 7. The cross-examination of RS certainly involved eliciting evidence to suggest that her evidence may be, at least in some respects, unreliable. In particular, it was clearly put that she was frightened of being charged with some involvement, either with the homicide itself or, more particularly, with moving the body. She agreed that she was frightened of being charged and had insisted that she be given what she described as a "pardon" but which was obviously an inducement (or, less likely, immunity), whereby the police offered or promised her that nothing she said in the interview she made with them would be used against her. 8. It is also the case, independently of that, that she would appear to be a witness who falls under the provision in s 165(1)(d), that is "a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding", in this instance the movement of the body. 9. There was also cross-examination clearly calculated to undermine her credibility as a result of difficulties she has had with drug use, drug addiction and the impact of that on her memory. So there is little doubt that, at least in some respects, her credibility is an issue in the trial, and that the accused challenges her credibility and relies on a number of factors, including those I just mentioned, to attack her credibility. 10. However, it is an interesting situation because the witness also gives evidence of contemporaneous conversations with the accused, upon which the accused will no doubt seize in due course to assist him in defending himself against the most serious charge he faces which is the murder of Mr Dower. In particular, RS gave evidence that the accused told her on the night she was shown the body, that he was trying to help Mr Dower "dry out" from alcoholism and that he – Mr Dower that is – had fallen over and also that other people had assaulted him. Those are matters which, at least as I understand the accused's case at this moment, would seem to accord with his position in respect of count 1. That is, the accused will challenge the Crown case that his acts – as opposed to other people's acts or an accident – caused Mr Dower's death. 11. The cross-examination raised, I think fairly clearly, the proposition that RS was not detained. But the nature of that cross-examination was not so much that she had fabricated her evidence about being detained, or that the evidence of being detained was the result of suggestion or reconstruction, but rather, that she had an erroneous belief that she was being detained. I think that is as high as the cross-examination went in that respect. 12. Although it was put to her that she was not scared and certain aspects of her account of being detained were challenged, it seemed to be calculated to assert that it was her belief in detention that was erroneous, rather than that she fabricated her evidence that Mr Jenkin was detaining her. 13. There were other propositions put to her which she denied, such as an assertion that she had in fact punched the dead body of Mr Dower. It was also put that she was not scared of Mr Jenkin at the time of the incident. 14. In respect of the second incident, which is to say the incident where the body was moved, I have to say the cross-examination was quite opaque. But what was not asserted – and what appears not to be challenged – is that Mr Jenkin did in fact ask RS to assist him to move the body. It was positively put to her, and she agreed, that at one stage she had indeed offered to do that. 15. Certainly some question marks were raised in the course of cross-examination as to exactly what she knew. For example, it was put to her that she did not actually look inside the surfboard bag, which on the Crown case contained the dead body of poor Mr Dower. She was also cross-examined about providing a version of events that the surfboard bag was a different colour to the one in which Mr Dower's body was finally located. 16. This may lead to a suggestion, as I understand it, having heard what the Crown Prosecutor had to say on the application and some evidence that fell from witnesses yesterday, that there may be an alternative suggestion to be put by the accused that something else was in the bag, perhaps a large number of coins. Mr Lowe, consistent with his duty to the accused, has been, as he put it, "circumspect", in responding to that suggestion. It may well be that it is an issue that arises; although it certainly was not put to the witness that there was any noise consistent with a bunch of coins being dropped from the second floor unit. 17. The question at the moment is whether or not the Crown should be given leave to examine the next witness (Mr Chae Allen) about a conversation in which he would say, as the Crown anticipates it, that RS told him shortly after these events that she was in fact detained by Mr Jenkin on the first occasion and that she had helped Mr Jenkin move the body at his request. That question turns on whether it has been, or will be, suggested, either expressly or by implication, that RS has fabricated or reconstructed her evidence, either deliberately or otherwise, or whether it be the result of suggestion: see s 108(3)(b). 18. Case law on the subject is surprisingly scant. Justice Greg James, as he once upon a time was, gave some guidance in R v Whitmore [1999] NSWCCA 247; (1999) 109 A Crim R 51 at [39]: In my view the denial of events alleged without more does not necessarily suggest, expressly or implicitly, positively, reconstruction, fabrication or suggestion. Even if it did, on the issue of whether leave would be granted, the restraint from attacking credibility by going no further would be a most material matter mitigating against the grant of leave. 1. That particular observation was referred to by Bathurst CJ in the case of Doyle v R; R v Doyle [2014] NSWCCA 4 at [177]. His Honour referred to the statement of principle from the case of Whitmore without any adverse observation. His Honour also referred to the observations of McColl JA and Latham J in Pavitt v R [2007] NSWCCA 88; (2007) 169 A Crim R 452. That case makes the point that the terms of s 108 ought not to be read down, but when it refers at [97]-[98] to the judgment in Whitmore it does so without any adverse comment. The point their Honours made is simply this: that there is no warrant for reading into the provision a requirement that fabrication be explicitly raised or strongly inferred before the credibility rule is waived. 2. When examined, it is seen that the cases of Pavitt and Doyle are cases where it was quite clear that cross-examining counsel went well beyond the mere suggestion that the evidence given by the witness was not correct. 3. In the present case, the cross-examination by Mr Lowe, who was well aware that this issue was afoot, was undertaken with considerable care. As a consequence, it was not put to the witness, directly or indirectly, or by implication, inference or otherwise that she was fabricating her evidence on any of the significant issues in relation to which her credibility is to be impugned. 4. For those reasons, the terms of s 108 are not engaged and leave to adduce evidence of the conversation between RS and Mr Allen is refused.