R v Jenkin (No 16) [2018] NSWSC 908

Supreme Court New South Wales

Medium Neutral Citation: R v Jenkin (No 16) [2018] NSWSC 908 Hearing dates: 05 June 2018 Decision date: 05 June 2018 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Evidentiary rulings made, see paragraphs [9], [14], [19], [22] and [34]. Catchwords: CRIMINAL LAW – evidence – hearsay – tender of witnesses' statements – witnesses deceased – where conversation recorded in statement a reconstruction – identification of "asserted fact" – where statement contains evidence of what another witness told her – whether first or second-hand hearsay – where witness's account a reconstruction of what the accused told him Legislation Cited: Evidence Act (1995) NSW, ss 60, 65, 67, 106, 108, 137 and 165 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. On 5 June 2018, the Crown tendered three statements made by witnesses who have died since making their statements. Objection was taken to portions of those statements. I made a number of rulings and provided ex tempore reasons for those rulings. This is a revised version of those reasons.

Ken Jenkin 1. Objection has been taken to part of a statement of Ken Jenkin dated 11 January 2016, which is Exhibit VD-U on the voir dire. 2. The agreed position of the parties is that Mr Ken Jenkin has died, and a notice pursuant to s 67 of the Evidence Act (1995) NSW was served. No technical objection is taken, and the accused accepted that the evidence is admissible as an exception to the hearsay rule under that section. However, there are a number of parts of the statement that the parties agree are not admissible. These were redacted from the version tendered on the voir dire. 3. The statement contains a number of conversations between the witness, Mr Ken Jenkin, and his son (that is the accused) and stepson (that is a co-accused or co-offender on the Crown case, Stuart Cowan). In essence, the father (that is the witness) reports back to the accused what Mr Cowan told him, and the Crown, as I understand it, essentially seeks to rely on Mr Jenkin's responses as perhaps adopting part of what was allegedly said. 4. The statement has the flavour of the witness himself trying to piece together what happened from snippets of information, or conversations he had with some of the relevant participants. 5. The first objection is to paragraph 25: 25. I said to Mark something like, 'Stuart had a conversation with me at the café. I want to tell you what Stuart said and I don't want you to interrupt. Stuart told me that the person that died did so in your flat and it was an accident. Stuart said you were letting him stay there and I think he said that he fell over while you were out and that you found him dead. Stuart has then rung me a couple of weeks ago and told me that that what he said was a load of bullshit and that it was just a figment of your brain. 1. Having considered the objection, and the submissions of the Crown in support of the admission of the statements in that paragraph, I formed the view that part of paragraph 25 is admissible to place in context the comment of the accused in paragraph 26, which was: "I did tell Stuart to tell you it was an accident, because I knew I would end up in trouble." However, the words immediately preceding that (in paragraph 25) are: "Stuart has then rung me a couple of weeks ago and told me that that what he had said was a load of bullshit, and that it was just a figment of your brain." That is what the witness is said to have relayed to the accused, and nothing in the conversation that followed suggests that Mr Jenkin adopted that part of Mr Cowan's opinion or what he allegedly said. 2. Stuart Cowan of course is not available to be cross-examined. He has a trial to be held in the District Court later this year. 3. The fact that Mr Ken Jenkin is not available for cross-examination is not a matter of great moment, because that is the very purpose of the exception to the hearsay rule, and warnings about the potential unreliability of such evidence can overcome any danger of unfairness or prejudice. But I cannot see any basis upon which the sentence commencing, "Stuart" and ending in "brain" (which is the last sentence of paragraph 25), is admissible, and accordingly my ruling is that that sentence is excluded. The balance of that paragraph will be admitted, but limited to place the conversation that follows in context. 4. The next objection is to the final sentence of paragraph 30. This relates to a conversation, or to the back-end of the conversation to which I have just been referring, when Mr Ken Jenkin seeks to relay what the accused said to him about what actually happened to Mr Dower. 5. To put it in context, the witness indicates that the accused talked continuously, and that the conversation went in different directions and not in exact order, and that he was, when making his statement, reconstructing in the sense that he said: "I put it in the order that I took it to be". 6. There is evidence before the Court which places those observations in some context, and that evidence comes in the form of intercepted telephone calls involving Mr Jenkin, and a video recording of what I take (at least on the Crown case, and perhaps also on the accused's case) is Mr Jenkin in his flat with Mr Dower and Mr Turner in which Mr Jenkin is speaking. In all of those conversations, Mr Jenkin's mode of communication is rapid, discursive and very difficult to follow. It is thus necessary to consider what Mr Ken Jenkin says with a degree of caution. Indeed, the part to which objection is taken commences with, "I think Mark said it". What he said is "I think Mark said, 'Paul thought Mark might die from detoxing and being beaten up'". 7. The reference to Paul is a reference to Paul Turner. He has already given evidence in the trial, and was able to give direct evidence of his observations of Mr Dower. In my view, the portion objected to has little or no probative value, and has potential for prejudice because it is truly a reconstruction. Even on its face, it is only what the witness thought Mark said in the course of what I have no doubt was a rapid and discursive narrative of events. 8. So for those reasons, I rule that the final sentence of paragraph 30 is inadmissible. Actually I think it is the penultimate sentence, it being agreed that the final sentence is inadmissible and has been redacted from the copy of the statement tendered on the voir dire but I rule these words: "I think Mark said Paul thought Mark might die from detoxing and being beaten up" are inadmissible.