R v Jenkin (No 10) [2018] NSWSC 705

R v Jenkin (No 10) [2018] NSWSC 705

Only evidence from Ms Mara that specifically points to a tendency to detain, intimidate, and assault persons (paragraph 16) is admissible as tendency evidence; general allegations of violence not involving detention lack significant probative value and are inadmissible for tendency. Evidence of an assault on Stuart Cowan is admissible but solely to explain the relationship and context, not as tendency evidence. Ms Mara is permitted to give evidence via audio visual link due to established interests of justice and minimisation of trauma.

Parties
Prosecution: Regina; Accused: Mark Kenneth Jenkin
Jurisdiction
Australia
Judgment Date
18 May 2018
Procedural Posture
Criminal / Interlocutory Ruling on Evidence Admissibility
Outcome
Selective admission and exclusion of proposed evidence; procedural direction granted for remote testimony.
Legal Topics
Tendency Evidence, Uncharged Acts, Admissibility of Evidence, Remote Evidence, Judicial Directions
Criminal Law Evidence Tendency Evidence Uncharged Acts Admissibility of Evidence Remote Evidence Judicial Directions

Case Brief

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Parties

Regina

Prosecution

Mark Kenneth Jenkin

Accused

Procedural Posture

Criminal / Interlocutory Ruling on Evidence Admissibility

Legal Issues

  1. 1 Whether portions of Ms Mara's statement are admissible as tendency evidence under s 97 Evidence Act 1995 (NSW)
  2. 2 Whether evidence of assaults on Mr Cowan is admissible for a non-tendency purpose
  3. 3 Whether Ms Mara should be allowed to give evidence via audio visual link under s 5B Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

Ratio Decidendi

Only evidence from Ms Mara that specifically points to a tendency to detain, intimidate, and assault persons (paragraph 16) is admissible as tendency evidence; general allegations of violence not involving detention lack significant probative value and are inadmissible for tendency. Evidence of an assault on Stuart Cowan is admissible but solely to explain the relationship and context, not as tendency evidence. Ms Mara is permitted to give evidence via audio visual link due to established interests of justice and minimisation of trauma.

Court Disposition

Selective admission and exclusion of proposed evidence; procedural direction granted for remote testimony.

Orders

  • The evidence in paragraphs 9, 10, 13, 14 and 15 of Ms Mara's statement is not admissible as tendency evidence.
  • The evidence in paragraph 16 of Ms Mara's statement is admissible as tendency evidence.