R v Jenkin (No 12) [2018] NSWSC 786

Supreme Court New South Wales

Medium Neutral Citation: R v Jenkin (No 12) [2018] NSWSC 786 Hearing dates: 21 May 2018 Date of orders: 21 May 2018 Decision date: 21 May 2018 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Leave granted pursuant to s 38(1) of the Evidence Act. Catchwords: EVIDENCE – leave to cross-examine own witness – whether evidence unfavourable to Crown – whether inconsistent with statement – good car to move a body in – conversation in witness statement not given in evidence – witness not making a genuine attempt to give evidence – leave granted Legislation Cited: Evidence Act 1995 NSW, ss 38(1), 192 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 Crown has made an application under s 38(1) of the Evidence Act 1995 NSW – specifically s 38(1)(b) but I think also potentially s 38(1)(c) – concerning the evidence of a witness Paul Lincoln who is currently in the course of giving his evidence-in-chief. The statement Mr Lincoln made to police back in May 2015 described a conversation he had with the accused in which there was some discussion about the purchase of a motor car. The statement suggests "during that conversation Jenko said things like it would be a good car to sleep in, that it would be a good car to camp in, and that it would be good to move a body in". Jenko went on to offer him $400 for the car. The Crown has, on at least two, and possibly three occasions, attempted to elicit that portion of the conversation where it was suggested that the red Subaru Impreza station wagon would be a good car to move a body in. 2. At this stage there has been no answer that goes close to that, although there was an answer that said it was a good car to camp in. So clearly the witness has been considering, and has had his mind focused on, that part of the conversation or that particular conversation. 3. The impression that I have gained from watching him and listening to his answers is that he is not making a genuine attempt to give evidence about this subject, and it is a matter about which he may reasonably be supposed to have knowledge. It is the kind of conversation that one would have thought would stand out. 4. I do not need, therefore, to consider whether or not his statement as to contents of that conversation, as given in evidence, is inconsistent with the earlier statement but I suspect it also falls into that category. 5. I will not allow the Crown to undertake a far-reaching cross-examination in relation to the issue, but I do propose to grant leave under s 38(1), having considered the particular criteria in (b) and (c), also taking into account the matters to be considered under s 192 of the Evidence Act. I don't propose in the circumstances to fully articulate those matters. I have done so in previous judgments, and similar considerations arise here concerning the importance of the evidence, the nature of the proceedings and so on. 6. I would invite the Crown, at least initially, to adopt the approach suggested by Mr Lowe in argument, which is to try to elicit this evidence by non-leading questions. But if the Crown Prosecutor forms a view that that is not getting there, I do not need him to make another application. He can move on to putting matters directly to the witness by leading questions as to what the Crown alleges was said in this conversation. So leave is granted pursuant to s 38(1) of the Evidence Act.