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R v Jenkin

R v Jenkin

Case [2018] NSWSC 547 30 April 2018

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Jenkin and Ors [2018] NSWSC 547
Hearing dates: 13, 20 and 24 April 2018
Date of orders: 30 April 2018
Decision date: 30 April 2018
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Application for severance of counts 2 and 3 refused.
(2) Order that Stuart Anthony Cowan be tried separately from Mark Kenneth Jenkin.
(3) In accordance with the Chief Justice’s exemption under s 128(2) of the Criminal Procedure Act and the undertaking of the Director of Public Prosecutions, the joint indictment is to be withdrawn and an indictment against Stuart Anthony Cowan to be presented in the District Court.
(4) Adjourn the proceedings against Stuart Anthony Cowan for mention on Monday 7 May 2018 at 9:30am.
(5) Subject to further pre-trial applications, the trial of Mark Kenneth Jenkin is to commence on Wednesday 2 May 2018.

Catchwords:
CRIMINAL LAW – application for severance of counts – relevant principles – where accused charged with murder – further charged with soliciting the murder of a witness – where accused and stepbrother charged with conspiracy to murder witness – where tendency evidence to be tendered on murder charge not admissible in respect of solicit and conspiracy charges – whether facts behind solicit charge admissible to prove consciousness of guilt – whether prejudice capable of being cured by direction – application refused
CRIMINAL LAW – murder – conspiracy and solicit murder of witness – application for separate trial from stepbrother – where stepbrother charged with conspiracy but not other offences – where cases substantially different – where case against stepbrother relatively confined – where stepbrother made inadmissible and pejorative references to accused and his defence to the murder charge – psychotic – compulsive liar – “believes his own bullshit” – stand-over merchant - cumulative impact of prejudicial material – incapable of cure by direction – application granted
Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 21, 29, 128, 132A
Cases Cited: Baden-Clay v The Queen [2016] HCA 35; 334 ALR 234
Gall v R [2015] NSWCCA 69
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Mulvihill v R [2016] NSWCCA 529
R v Brooks [2017] NSWSC 188
R v Ciantar (2006) 16 VR 26; [2006] VSCA 263
R v Cook [2004] NSWCCA 52
R v Fernando & Anor [1999] NSWCA 66
R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177
R v Martin & Martin [2017] NSWSC 1106
R v Middis (Supreme Court (NSW), 27 March 1991, unrep)
R v Patalis & Spathis (No 1) [1999] NSWSC 649; (1997) 107 A Crim R 432
R v Pham [2004] NSWCCA 190
R v Qaumi & Ors (No 3) (Severance and separate trial) [2016] NSWSC 15
R v Roff [2015] NSWSC 1853
R v Sievers [2004] NSWCCA 463; (2004) 151 A Crim R 426
R v White [1998] 2 SCR 72
Steer v R [2008] NSWCCA 295; (2008) 191 A Crim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jenkin

Details

AGLC: R v Jenkin [2018] NSWSC 547
Case: [2018] NSWSC 547
Decision Date: 30 April 2018

CaseChat Overview and Summary

In the case of R v Jenkin, the respondent was charged with murder, the solicitation of the murder of a witness, and conspiracy to murder a witness. The accused sought severance of the counts in the indictment and a separate trial from his stepbrother, who was charged with conspiracy but not with the other offences. The application was heard in the High Court of Australia. The primary legal issue was whether the application for severance of counts and separate trials should be granted. This involved assessing whether the evidence and circumstances surrounding the charges would prejudice the accused's right to a fair trial if tried jointly.

The court considered the principles governing severance and separate trials, focusing on the potential prejudice to the accused if tried jointly with his stepbrother. The court found that the evidence concerning the murder charge was not admissible in respect of the solicitation and conspiracy charges, but the facts behind the solicitation charge were relevant to prove the accused's consciousness of guilt. The court also examined whether any prejudice could be cured by direction. The court concluded that the prejudice arising from the stepbrother's inadmissible and pejorative references to the accused was cumulative and incapable of being cured by direction. The court found that the cases against the accused and his stepbrother were substantially different, and the stepbrother's case was relatively confined. Consequently, the application for severance and a separate trial was granted.

The final orders of the court were that the counts in the indictment against the accused should be severed, and the trial of the accused should proceed separately from that of his stepbrother. This decision was based on the likelihood of significant prejudice to the accused if tried jointly, which could not be adequately mitigated by directions to the jury.

Orders