R v Jenkin (No 15) [2018] NSWSC 826

R v Jenkin (No 15) [2018] NSWSC 826

The proposed evidence was not admissible under s 39(a) because the cross-examination concerned a different conversation at the police station, and the alleged statement asking who the victims were did not arise out of evidence given by the witness in cross-examination. Leave under s 39(b) was refused because, although the proceedings were serious, the evidence was not particularly important, it emerged very late in an already overlong trial, admitting it would likely require further cross-examination and possible recall of another detective, and it would be unfair to the accused.

Jurisdiction
Australia
Judgment Date
05 June 2018
Procedural Posture
Criminal Procedural Ruling in Murder Prosecution / Objection to Proposed Re Examination Evidence During Crown Case at Judge Alone Trial
Outcome
Objection upheld; evidence ruled not admissible in re-examination and leave refused.
Legal Topics
['limits on Re Examination' 'admissions' 'electronic Recording of Admissions' 'leave to Adduce Evidence' 'trial Management']
['criminal Law' 'evidence'] ['limits on Re Examination' 'admissions' 'electronic Recording of Admissions' 'leave to Adduce Evidence' 'trial Management']

Case Brief

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Procedural Posture

Criminal Procedural Ruling in Murder Prosecution / Objection to Proposed Re Examination Evidence During Crown Case at Judge Alone Trial

Legal Issues

  1. 1 ["Whether the accused's alleged statement asking who the named victims were was relevant as an implied admission or evidence of consciousness of guilt." 'Whether there was a reasonable excuse under s 281 of the Criminal Procedure Act 1986 (NSW) for the conversation not being recorded.' 'Whether the proposed evidence arose out of evidence given in cross-examination for the purposes of s 39(a) of the Evidence Act 1995 (NSW).' 'Whether leave should be granted under s 39(b) of the Evidence Act 1995 (NSW), having regard to s 192(2).']

Ratio Decidendi

The proposed evidence was not admissible under s 39(a) because the cross-examination concerned a different conversation at the police station, and the alleged statement asking who the victims were did not arise out of evidence given by the witness in cross-examination. Leave under s 39(b) was refused because, although the proceedings were serious, the evidence was not particularly important, it emerged very late in an already overlong trial, admitting it would likely require further cross-examination and possible recall of another detective, and it would be unfair to the accused.

Court Disposition

Objection upheld; evidence ruled not admissible in re-examination and leave refused.

Orders

  • ['The evidence is not admissible in re-examination under s 39(a).' 'Leave under s 39(b) to adduce the evidence in re-examination is refused.']