R v Jenkin (No 11) [2018] NSWSC 790

R v Jenkin (No 11) [2018] NSWSC 790

The evidence was admissible because, if accepted, it had a high degree of probative value in explaining the nature of the relationship between the accused and the deceased and addressing the issues in the trial. Although the late disclosure created a danger of unfair prejudice, that danger did not outweigh the probative value because experienced defence counsel had significant material to attack the witness's credibility and procedural remedies, including adjournment or other steps, were available to cure any unfairness. Assuming s 192 applied, its criteria did not alter the result.

Jurisdiction
Australia
Judgment Date
18 May 2018
Procedural Posture
Criminal Trial Evidentiary Ruling / Procedural Ruling During Trial on Admissibility of Evidence
Outcome
Evidence of alleged assault on the deceased by the accused is admissible.
Legal Topics
['admissibility of Evidence' 'unfair Prejudice' 'probative Value' 'late Disclosure' 'leave, Permission or Direction' 'witness Credibility']
['criminal Law' 'evidence'] ['admissibility of Evidence' 'unfair Prejudice' 'probative Value' 'late Disclosure' 'leave, Permission or Direction' 'witness Credibility']

Case Brief

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Procedural Posture

Criminal Trial Evidentiary Ruling / Procedural Ruling During Trial on Admissibility of Evidence

Legal Issues

  1. 1 ["Whether Ms Mara's evidence that the accused struck, punched or otherwise assaulted the deceased was admissible despite not being included in her witness statement and being disclosed very late." 'Whether the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW) outweighed the probative value of the evidence.' 'Whether s 192 of the Evidence Act 1995 (NSW) affected the ruling on admissibility.']

Ratio Decidendi

The evidence was admissible because, if accepted, it had a high degree of probative value in explaining the nature of the relationship between the accused and the deceased and addressing the issues in the trial. Although the late disclosure created a danger of unfair prejudice, that danger did not outweigh the probative value because experienced defence counsel had significant material to attack the witness's credibility and procedural remedies, including adjournment or other steps, were available to cure any unfairness. Assuming s 192 applied, its criteria did not alter the result.

Court Disposition

Evidence of alleged assault on the deceased by the accused is admissible.

Orders

  • ['The evidence is admissible and may be led.']