R v Jenkin (No 4)

The accused raises objection to part of paragraph 10 of the statement of the current witness, Matthew Beretov. That paragraph sets out a number of communications between the accused and another person in the following terms:

Initially, the statement of the witness was tendered and marked as Exhibit F. No objection was taken. Accordingly, the part of the statement to which objection is now taken is already in evidence. However, in spite of that inexplicable glitch, I accept that it is appropriate, the matter now having been raised, to rule on the admissibility of the statement.

The evidence on its face may tend to suggest that the accused was involved in some form of drug dealing. That obviously has the potential to have a prejudicial impact. However, the Crown says it will not seek in any way to rely on the evidence in that respect. In any event, part of the accused's case, as it was put directly to a previous witness, is that the previous witness had purchased drugs from the accused. That is important in assessing any unfair prejudice arising from the evidence the Crown now seeks to elicit.

The Crown says the evidence has relevance because there are references to a person “Pauly” in three of the messages and to “Paul” in a fourth message.

The Crown case will be that this, along with other evidence, will establish some connection between Mr Jenkin and the co-accused or alleged co-offender, Mr Paul Turner.

There is also reference in the sixth message to a person “Desi”. It will be the Crown case that someone who goes by that nickname was the person ultimately approached by the other alleged co-offender, Mr Cowan, to purchase heroin for the purpose of killing one of the witnesses in the case. That is the subject of the second and third counts - solicit to murder and conspiracy to murder.

The evidence is objected to on the basis of relevance. I am satisfied on the basis of the Crown's submission that the evidence is relevant to establish connections between the present accused and the other men. I am satisfied, given the contest between the parties, that there is some probative value to the evidence to be used in that way.

I accept Mr Lowe’s submission that the evidence does have a potential for prejudice but in view of: (1) the fact that the Crown will not seek to rely on the material as establishing any bad character by way of the accused being a drug dealer; (2) that the accused himself has put to a witness that he purchased drugs from the accused; and (3) that the trial is being conducted by way of a Judge alone wherein I can use the evidence in a particular way and not in a prejudicial way, I am satisfied that the evidence is admissible and that the probative value outweighs its potential to do prejudice.

Accordingly, Exhibit F will remain in its current form, notwithstanding the belated objection to part of paragraph 10, and the witness can continue to read his statement.