Supreme Court New South Wales Medium Neutral Citation: R v Jenkin (No 15) [2018] NSWSC 826 Hearing dates: 4 – 5 June 2018 Date of orders: 05 June 2018 Decision date: 05 June 2018 Before: Hamill J Decision: (1) The evidence is not admissible in re-examination under s 39(a). (2) Leave under s 39(b) to adduce the evidence in re-examination is refused. Catchwords: CRIMINAL LAW – limits on re-examination – whether evidence an admission – whether reasonable excuse for failure to record – where no evidence of conversation given in evidence in chief or through other police officer present – where counsel cross-examined on different conversation – other conversation did not contain an admission – matter did not arise out of evidence given in cross-examination – whether leave should be granted – relevant considerations under s 192 – where trial proceeding well beyond estimate – inefficient conduct of proceedings – every conceivable bunny – every possible rabbit hole – leave would extend length of proceedings – evidence not important in context of the case – leave refused Legislation Cited: Criminal Procedure Act 1986 (NSW), s 281 Evidence Act 1995 (NSW), ss 39 and 192 Cases Cited: R v Jenkin (No 14) [2018] NSWSC 837 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. Shortly after 4.00pm yesterday, an issue arose as to whether the Crown could lead certain evidence in re-examination of the current witness, Dylan Liackman. As I understand it, Mr Liackman is the second officer in charge of the police investigation into the death of Mark Dower and the prosecution of Mark Jenkin for Mr Dower's murder. The officer in charge, Detective Adams, has already given lengthy evidence in the trial. 2. In his evidence in chief, Mr Liackman gave evidence of his role in the investigation and various jobs that he did in gathering the evidence and liaising, to put it in the most neutral possible term, with the witnesses. [1] Part of his evidence included that he was present when the accused man was arrested at the Newcastle Police Station. This part of his evidence was led in the following terms (T 1646-1647): Q. Now, on 24 November 2015 at 9.50 am, were you and Detective Adams at Newcastle Police Station? A. Yes, we were. Q. What were you doing there? A. I think that was the occasion we were there to arrest Mark Jenkin. Q. And he was brought in custody from the Cessnock gaol? A. Yes. Q. And was he informed that he was under arrest in relation to the murder of Mark Dower? A. Yes, he was. Q. And the solicit to murder RS? A. Yes. Q. Also obtain advantage of Dusan Vukadinovic? A. Yes. Q. He didn't take part in a formal interview and was formally charged with those offences? A. That's correct. Q. And did he take part, ultimately, in a provision of a buccal sample? A. Yes. Q. Were you involved in the videoing of that buccal sample? A. I obtained the video of the buccal sample and I was also present for foot impressions. Q. Were the foot impressions done that day or some other day? A. Same day. Q. The purposes of foot impressions was in relation to the evidence of Detective Moon about the identification of the feet in the bathroom from the video? A. For comparison, that's correct. Q. The video of the taking of the buccal sample and the other forensic procedures were videoed and can be played, if required. A. The buccal sample was videoed. I'd have to check on the taking of the foot sample. 1. No evidence was led in the course of the evidence in chief as to any conversation between the detectives and the accused upon his arrest. Similarly, no evidence was led from Detective Adams as to conversations with the accused upon the latter's arrest except for the fact that the accused declined to participate in an interview. 2. In re-examination, the Crown seeks to lead evidence of a conversation in which the accused was told he was to be charged with the murder of Mark Dower, soliciting the murder of RS and detaining Dusan Vukadinovic for advantage. When asked if he understood that, the accused allegedly replied "Yes, but who are they?" The evidence given in the trial to this point establishes that the accused knew both Mr Dower and RS well and by name. [2] He probably knew Dusan Vukadinovic as well, although that man seemed to go by, or be called, a number of different names (Dusan, Donny, Dominic) and many witness merely knew him as "the Serbian" or similar descriptors. 3. In any event, if the accused asked police who Mr Dower and RS were, after being told he was to be charged with offences in which they were nominated as victims, the inquiry might be seen as disingenuous. His response to the identification of the charge is capable of being categorised as a dishonest response about a material issue. It may thus be capable of being used as evidence that might demonstrate a consciousness of guilt on his part. Contrary to the submission of Mr Lowe, counsel for the accused, the conversation is capable of amounting to an implied admission. In saying this, I should indicate that I did not give Mr Lowe the opportunity fully to articulate submissions on that issue. 4. There is also an issue as to whether the conversation ought to have been recorded under s 281 Criminal Procedure Act 1986 (NSW) and, if so, whether there was a reasonable excuse for not recording it. 5. However, as I see it the real question is whether the Crown should be entitled to lead this evidence in re-examination. That decision is governed by s 39 Evidence Act 1995 (NSW) which reflects the common law and provides, according to its heading, "Limits on re-examination". The section is in the following terms: 39 LIMITS ON RE-EXAMINATION On re-examination: (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and (b) other questions may not be put to the witness unless the court gives leave. 1. The first question is whether this specific conversation upon which the Crown seeks to ask questions arises "out of evidence given by the witness in cross-examination." The only cross-examination about any conversation upon the accused's arrest was as follows (T 1666-1667): Q. I want to put to you, you saw my client at Newcastle Police Station on 24th November 2015? A. Yes. Q. And you were with Shawn Adams? A. Yes. Q. But you, yourself, had a conversation with Mr Jenkin at the counter, in the dock area of the police station? A. We exchanged some words, yeah. Q. What I put, these were the words that were said: If Mr Jenkin said to you "if you'd have investigated this properly over the last nine months, then you would know I didn't kill this bloke." That is what I'm putting Mr Jenkin told you? A. I recall different conversation. Q. I am putting to you that that is what he said to you? A. Okay, yep. Q. And I am putting to you what you said to him is, "we know, but we know you were there when he died"; did you have those words with him? A. I don't recall that, no. Q. Mr Jenkin said to you, "well, you're saying that. Are you still going to charge me with murder", to which you said to him, "well, you need to tell us where to go to investigate." Do you recall that part of the conversation being said? A. No, I don't recall that. Q. Mark Jenkin said, "but you know I don't talk to police on the record, off the record. I don't do statements for or against anyone, let alone for myself"; did he say that to you? A. I don't recall him saying that either. Q. I put to you that what you said to him is, "we know, that's why it is going to be 18 months to two years before you get a trial date"; do you recall that part of a conversation? A. I can tell you what I do recall. I don't recall that. 1. It is tolerably clear from this exchange that the police officer was aware of the conversation with which the cross-examination was concerned but recalled that conversation differently. Assuming it was otherwise admissible (that is relevant and not in breach of provisions such as s 281 Criminal Procedure Act), evidence of the officer's version of that particular conversation arose out of the evidence he gave in cross-examination. However, this is not the evidence the Crown now seeks to lead. 2. When the issue arose, the Crown Prosecutor made it clear that he was not aware of what the evidence would be and could not therefore contend one way or another whether it was relevant (that is, an admission) (T 1670). With the consent of counsel for the accused (T 1672), the Crown Prosecutor had a conference with the witness. When the court re-assembled, the Crown Prosecutor said (T 1672): CROWN PROSECUTOR: Your Honour, I have spoken to the officer, and the comment that he gave evidence about earlier is not a matter that would amount to an admission, and the Crown wouldn't be seeking to lead that. 1. However, the Crown then sought to lead the evidence to which objection is now taken, that is the evidence that the accused asked who Mr Dower, Mr Vukadinovic and RS were. The accused objected. Mr Liackman's statement was tendered on the voir dire (Ex VD S). 2. Three questions arose. First, is the evidence relevant? Second, given that the evidence was not recorded, is there a reasonable excuse for the purpose of s 281 of the Criminal Procedure Act? Third, is the evidence able to be led in re-examination given the limits provided by s 39 Evidence Act? I did not hear extensive submissions from the accused who initially submitted (and seemed to maintain) that the evidence did not amount to an admission. I did not invite further submissions but heard from the Crown on all three issues. 3. As to the first question, my tentative conclusion (in the absence of further submissions of the accused) is that the evidence is relevant because it is capable of amounting to an implied admission for the reasons already disclosed. 4. As to the second question, there is evidence that the accused declined to be interviewed. It may be that this constitutes a reasonable excuse for the purpose of s 281 because the definition of "reasonable excuse" in s 281 includes: "the refusal of a person being questioned to have the questioning electronically recorded". My conclusion on that issue is also a tentative one for two reasons. First, I have not given the accused the chance to make submissions on the subject. Secondly, the evidence that the accused declined to be interviewed is of a general nature. There is no evidence, as I recall it, that the officers asked the accused to allow them to record the relevant conversation after it had occurred. However, I proceeded on the basis that there was a reasonable excuse for the purpose of s 281. 5. As to the third question, the Crown Prosecutor submitted as follows (T 1673): Well your Honour, it's admissible because of the fact that there were things that were said which were not recorded, which were not led because they were not admissible. The Crown considers that those conversations were not part of the material that was going to be led, but there has since been conversations led which have not attempted to be led which are not matters that the Crown was previously aware of. Now that that area has been opened up, the actual conversations that the officer does recall being said, and are relevant, I submit could then be relied upon by the Crown to be led in evidence. It wasn't an area that the Crown was initially going to open up. I suggest my friend has opened that up. 1. The problem with this submission is the lack of precision in identifying the "area" that the accused is said to have "opened up". For the purpose of s 39, I do not accept that the area can be as broad as any conversation the accused had with the police officers. The question is whether the "matters" to which the question relates arise out of evidence the witness gave in cross-examination. Relevantly here, the evidence Mr Liackman gave related to his disagreement with the version of a particular conversation had at the police station. Following the conference, the Crown accepted that the witness's version did not encompass an admission. Mr Liackman did not give evidence in cross-examination about any other conversation between investigators and the police at the police station or otherwise. Nor was he asked whether there were any such conversations. 2. Accordingly, Mr Liackman cannot be asked about those matters in re-examination pursuant to s 39(a). 3. There remains the question of whether leave should be granted pursuant to s 39(b). In determining whether leave should be granted, I must take into account amongst other matters relevant to the interests of justice the matters set out in paragraphs (a) to (e) of s 192(2). I will deal with those matters in turn. (a) The extent to which granting leave is likely to add unduly to the length of the hearing. 1. As I commented in different contexts yesterday, the present trial has gone well over the estimate. It was originally listed as a trial of three accused, to be conducted by a jury, and the list judge was given an estimate of six weeks. After various relevant applications and orders, the trial has been conducted by Judge alone with one accused. After the trial by judge order and separation of the two co-accused, the revised estimate was 3-4 weeks. We are now at the beginning of the sixth week of the trial and the Crown case has not yet closed. 2. As I commented in argument, there has been a tendency to chase every conceivable bunny down every possible rabbit hole. This has not been the fault of the Crown Prosecutor who has been put to strict proof on just about every issue in the case. For example, 1. The Crown has been required to prove strictly and by reference to every movement of the telephone that a telephone in the possession of the accused was the same telephone analysed by technical police. 2. The Crown has called evidence designed to establish that a foot depicted in a video located on that telephone [3] (and owned by the person recording the video on the telephone) is the foot of the accused. Given the way the case has been conducted, and insofar as I know what the defence case is after five full weeks, this does not seem to be disputed. Even so, when I made the inquiry as to whether this was really an issue in the trial, and whether it was necessary to call expert evidence of a foot comparison undertaken by a crime scene officer, no concession was made. 3. There have been constant interruptions to the trial to enable counsel to take instructions from Mr Jenkin. I have often had to leave the bench while this is done or delay the cross-examination of a witness for hours or days. 1. [In the original ex tempore version of this judgment (a transcript of which will be maintained on the Court file) a number of other examples of interruptions to the trial, and inefficient use of the court's time, were set out. Even this was not comprehensive but it is unnecessary to include the full detail in this published version of the judgment. At the time of publishing the revised judgment, 18 June 2016, the trial has entered its eighth week (Day 33) and addresses are in progress.] 2. I have only scratched the surface of the number of occasions when the conduct of the trial, and the failure to focus on what appear to be the true issues, has prolonged the length of the trial. As I have said, most of the delay has not been the fault of the Crown Prosecutor. Nevertheless, this is a matter relevant to a consideration of s 192(2)(a). 3. If leave is granted to allow this evidence to be given in re-examination, it is almost inevitable that the accused will seek (and be granted) leave to cross-examine Mr Liackman on his account. I can also foresee an application to recall Detective Adams so that the accused's denial of the conversation (as I understand it to be) can be put to him. 4. Granting leave would add to the length of the trial in circumstances where the trial has already taken longer than it should have. (b) The extent to which to do so would be unfair to a party or to the witness. 1. While there would be no unfairness to the witness, there would be unfairness to the accused if leave were granted to adduce this evidence in re-examination. The evidence emerged on the day before it is anticipated that the Crown case would (finally) close. Had the evidence been given through Detective Adams, the accused may have taken steps to attempt to impeach the evidence. It may be that there are cameras or even microphones in the area of the Newcastle Police Station. It may be that notes or other internal police documents would have been subpoenaed. (c) The importance of the evidence 1. I do not consider the evidence to be particularly important to the Crown case. If it was, and if there is a reasonable excuse under s 281, one would have expected there would have been an earlier attempt to adduce the evidence (through Detective Adams and in Mr Liackman's evidence in chief). The evidence goes (at most) to establish a possible consciousness of guilt in circumstances where there is a body of other evidence capable of being used in that way and in which the evidence might be explained in other ways, including the somewhat truculent and oppositional nature of the accused man. (d) The nature of the proceedings 1. The seriousness of the offence and nature of the proceedings militates in favour of allowing the evidence to be adduced. (e) Other remedies 1. There is no other relevant remedy. 2. A consideration of those various factors leads me to refuse to grant leave to elicit the evidence in re-examination. 3. Accordingly, I uphold the objection and rule that the evidence is not admissible. ********** Endnotes 1. More will need to be said about his interaction with a particular witness (Lisa Mara) when I deliver my judgment on the verdict in the case. 2. Evidence given after this judgment was delivered suggested the accused may have known RS by a different name. 3. As to which, see the earlier judgment in R v Jenkin (No 14) [2018] NSWSC 837. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2018