R v Jenkin (No 17) [2018] NSWSC 907

Supreme Court New South Wales

Medium Neutral Citation: R v Jenkin (No 17) [2018] NSWSC 907 Hearing dates: 05 June 2018 Decision date: 05 June 2018 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: The evidence of Ms Angela Mpimerias will be disregarded in its entirety. Catchwords: CRIMINAL LAW – where witness required for further cross-examination – witness with mental health issues – witness not excused on subpoena – witness fails to appear for the further cross-examination – medical certificate indicating her difficulties – where Crown withdraws evidence – evidence to be disregarded Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 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. Earlier in the trial, on 8 May 2018, a witness called Angela Mpimerias gave evidence and was cross-examined. Her evidence went to an issue concerning an alleged assault by the accused on the deceased which involved the former kicking the latter. 2. Counsel for the accused cross-examined the witness and she claimed to have told a police officer Detective Elliott about that incident and Detective Elliott said that she would not include that in her statement. Detective Elliott later gave evidence in the trial and she denied that. She also said that if she had been told of any incident in which the accused kicked or otherwise assaulted the deceased, she would have included that in the witness's statement. 3. The cross-examination also included cross-examination on the witness's criminal history. That was not so much to expose the criminal history itself, but to expose the fact that on a number of occasions the witness had been dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). 4. At the end of the cross-examination, counsel for the accused said that he had no further cross-examination "at this stage", and I then indicated to the witness that "we may need to get you back at some stage, but at this stage you're free to go": T 369. In other words, the witness was not excused under her subpoena and it was foreshadowed, at least implicitly, that there may be further cross-examination. 5. Since that time the legal representatives of the accused have issued subpoenas seeking her mental health records and have obtained a very large volume of material. I don't know what is in it, but I have seen that it is bulky and extensive. 6. She was due to return to Court today for further cross-examination but she has not appeared, and the Crown has tendered a letter from the Illawarra Shoalhaven Local Health District and specifically the Shellharbour Hospital Mental Health Rehabilitation Unit which says: "I'm writing to express our medical recommendation that Miss Mpimperias be excused from attending court. Angela is currently an inpatient on the Shellharbour Hospital Mental Health Rehabilitation Unit; Angela has reported that her recent court appearance was a very stressful experience for her which has impacted her deeply. Our Medical opinion is that further court appearances would likely worsen Angela's mental state and adversely affect her progress with her recovery. It may be possible to arrange for Angela's testimony to be provided in writing to allow Angela to contribute without negatively impacting her emotional and psychological wellbeing." 1. In the course of the argument today, the learned Crown Prosecutor, very fairly and properly, indicated that in the circumstances he would consent to have her evidence withdrawn from consideration. It seemed there was very little that I could do, apart from enforce her attendance on the subpoena, given that she had not been excused and given that the accused requires her for further cross-examination. I would be reluctant to do that given the content of what is in the letter from her doctors but, in fairness to the accused, I could see no other course. 2. I think the position taken by the Crown in the circumstances is both a compassionate and a responsible one and I propose to act upon it. Accordingly, I will disregard in its entirety the evidence given by the witness Ms Angela Mpimerias recorded in the transcript from page 348-370.