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

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

Only those portions of deceased witnesses' statements that are first-hand hearsay and have sufficient probative value relative to any prejudicial effect are admissible under s 65 of the Evidence Act. Material that is demonstrably second-hand hearsay or a reconstruction of events, or of minimal probative value, must be excluded under s 137 as the potential for unfair prejudice outweighs its utility.

Parties
Crown: Regina; Accused: Mark Kenneth Jenkin
Jurisdiction
Australia
Judgment Date
05 June 2018
Procedural Posture
Criminal / Evidentiary Ruling on Admissibility of Statements of Deceased Witnesses (voir Dire)
Outcome
Selected portions of deceased witnesses' statements ruled admissible; other identified passages ruled inadmissible as per reasons in [9], [14], [19], [22], and [34].
Legal Topics
Hearsay Evidence, Admissibility of Deceased Witness Statements, First Hand and Second Hand Hearsay, Procedural Rulings
Criminal Law Evidence Hearsay Evidence Admissibility of Deceased Witness Statements First Hand and Second Hand Hearsay Procedural Rulings

Case Brief

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Parties

Regina

Crown

Mark Kenneth Jenkin

Accused

Procedural Posture

Criminal / Evidentiary Ruling on Admissibility of Statements of Deceased Witnesses (voir Dire)

Legal Issues

  1. 1 Whether portions of deceased witnesses' statements are admissible under hearsay exceptions in the Evidence Act 1995 (NSW)
  2. 2 Whether identified portions of statements are first-hand or second-hand hearsay
  3. 3 Whether probative value of hearsay evidence outweighs prejudicial effect under s 137 Evidence Act

Ratio Decidendi

Only those portions of deceased witnesses' statements that are first-hand hearsay and have sufficient probative value relative to any prejudicial effect are admissible under s 65 of the Evidence Act. Material that is demonstrably second-hand hearsay or a reconstruction of events, or of minimal probative value, must be excluded under s 137 as the potential for unfair prejudice outweighs its utility.

Court Disposition

Selected portions of deceased witnesses' statements ruled admissible; other identified passages ruled inadmissible as per reasons in [9], [14], [19], [22], and [34].

Orders

  • Part of paragraph 25 of Ken Jenkin's statement excluded; remainder admitted for contextual purposes.
  • Penultimate and final sentences of paragraph 30 of Ken Jenkin's statement excluded as inadmissible.