R v Jenkin (No 2) [2018] NSWSC 697

R v Jenkin (No 2) [2018] NSWSC 697

The accused had a legitimate forensic purpose in seeking the criminal histories of at least the three prosecution witnesses who had already given or commenced giving evidence. In a criminal trial, the accused was not required to prove prior knowledge or suspicion that each witness had a criminal record, and the request was not a fishing expedition. Deferring access until cross-examination or leaving the trial judge to determine access as relevance emerged would be unworkable and risk unfairness. No privilege or public interest immunity was claimed, and witness privacy did not justify denying access to material that may assist the defence. Access to the produced records was therefore granted.

Jurisdiction
Australia
Judgment Date
04 May 2018
Procedural Posture
Criminal Subpoena Ruling in Murder Trial / During Trial; Ruling on Production of and Access to Criminal Histories of Prosecution Witnesses
Outcome
Documents produced under subpoena were noted and access was granted to both parties; the remaining dispute became unnecessary after remaining documents were provided informally.
Legal Topics
['subpoena to Produce Documents' 'criminal Histories of Prosecution Witnesses' 'legitimate Forensic Purpose' 'fishing Expedition' 'crown Duty of Disclosure' 'access to Subpoenaed Material']
['criminal Law' 'criminal Procedure' 'evidence'] ['subpoena to Produce Documents' 'criminal Histories of Prosecution Witnesses' 'legitimate Forensic Purpose' 'fishing Expedition' 'crown Duty of Disclosure' 'access to Subpoenaed Material']

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Procedural Posture

Criminal Subpoena Ruling in Murder Trial / During Trial; Ruling on Production of and Access to Criminal Histories of Prosecution Witnesses

Legal Issues

  1. 1 ['Whether the accused had a legitimate forensic purpose in subpoenaing criminal histories of prosecution witnesses.' 'Whether the subpoena was an impermissible fishing expedition.' 'Whether the accused was required to show a basis for believing that each witness had a criminal record.' "Whether access to criminal histories should be deferred until the course of each witness's evidence." 'Whether witness privacy justified denying access to criminal histories that may assist the defence.' "The relationship between the Crown's duty of disclosure and subpoenas directed to the Commissioner of Police."]

Ratio Decidendi

The accused had a legitimate forensic purpose in seeking the criminal histories of at least the three prosecution witnesses who had already given or commenced giving evidence. In a criminal trial, the accused was not required to prove prior knowledge or suspicion that each witness had a criminal record, and the request was not a fishing expedition. Deferring access until cross-examination or leaving the trial judge to determine access as relevance emerged would be unworkable and risk unfairness. No privilege or public interest immunity was claimed, and witness privacy did not justify denying access to material that may assist the defence. Access to the produced records was therefore granted.

Court Disposition

Documents produced under subpoena were noted and access was granted to both parties; the remaining dispute became unnecessary after remaining documents were provided informally.

Orders

  • ['Note that documents produced under subpoena.' 'Access granted to both parties.']