R v Jenkin (No 10)

[2018] NSWSC 705

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

17 May 2018

Decision date:

18 May 2018

Jurisdiction:

Common Law - Criminal

Before:

Hamill J

Decision:

1. The evidence in paragraphs 9, 10, 13, 14 and 15 of Ms Mara’s statement is not admissible as tendency evidence.
2. The evidence in paragraph 16 of Ms Mara’s statement is admissible as tendency evidence.
3. The evidence of Ms Mara that the accused assaulted Mr Cowan is admissible but pursuant to s 136 Evidence Act 1995 its use will be limited to explain the nature of the relationship between the men and to place the actions of Mr Cowan in context.
4. I make a direction under s 5B Evidence (Audio and Audio Visual Links) Act 1998 that Ms Mara may give evidence at a place other than the courtroom.

Catchwords:

CRIMINAL LAW – tendency evidence – evidence of former partner of accused – evidence of domestic violence – where accused charged with murder – where allegation that accused detained victim and committed acts of violence on him – defence case that accused helping victim dry out from alcoholism – whether evidence has significant probative value – general allegations of violence not admissible – allegations involving detention and violence admissible

 

CRIMINAL LAW – uncharged acts of violence on alleged co-offender – evidence not admissible as tendency evidence – admissible to establish nature of relationship and explain conduct of the co-offender – order made limiting use of evidence

  CRIMINAL LAW – whether witness should be permitted to give evidence by audio visual link – where witness alleged victim of violence – opinion of psychologist that procedure will minimise impact of trauma – where accused opposes direction – onus on prosecution – interests of administration of justice – relevant considerations – direction made

Legislation Cited:

Evidence Act 1995 (NSW), ss 97, 101, 135(c), and 136
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B

Cases Cited:

Hughes v The Queen [2017] HCA 20, (2017) 92 ALJR 52
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R v Jenkin (No 8) [2018] NSWSC 704

Category:

Procedural and other rulings

Parties:

Regina
Mark Kenneth Jenkin

Representation:

Counsel:
Mr M Fox (Crown)
Mr P Lowe (Jenkin)

  Solicitors:
Director of Public Prosecutions (Crown)
O’Brien Solicitors (Jenkin)

File Number(s):

2015/00345562

Publication restriction:

No

Judgment

1. Yesterday, the parties raised two or perhaps three issues for determination in relation to the evidence of a witness it is proposed to call to give evidence today. The witness is Lisa Mara who was in some kind of a relationship with the accused man, Mark Jenkins, from late 2014. The Crown made an application for her evidence to be given by audio visual link (AVL). I will return to that application in due course because counsel for the accused, Mr Lowe, indicated a more fundamental issue and one that may influence the position he would take in relation to the application for the evidence to be give remotely by AVL. Mr Lowe indicated that there was an objection to those parts of Ms Mara’s statement that the Crown sought to rely on as tendency evidence.

2. The issue of tendency, and the body of evidence that the Crown seeks to elicit to prove the tendencies asserted, has been subject to some argument previously in the trial (see, for example, Tcpt, 1 May 2018, p 26-35).

3. This morning I published my reasons for excluding one part of the Crown’s tendency case: R v Jenkin (No 8) [2018] NSWSC 704. Aspects of the reasoning in that judgment are relevant to some of the evidence the Crown seeks to elicit from Ms Mara. I also set out in Jenkin (No 8) the factual issues in more detail as well as the four tendencies the Crown seeks to establish by reference to the amended tendency notice (Ex VD-B) and revised list of tendency evidence. As in Jenkin (No 8) the only relevant tendency is the third tendency identified in the notice, namely a tendency “to detain persons and to intimidate and physically assault them.”

4. Other pieces of tendency evidence have been admitted without objection: see, for example, the evidence of Mr Vukadinovic and the evidence of Craig Maguire.

5. The Crown identified the following pieces of evidence:

9. When JENKO would get on any opiates he would become violent. On a number of occasions I saw JENKO assault Stuart, Trevor, Mario (Muzz). Mario lived in Struggletown (Myuna Way). These assaults were one or two punches but with Stuart and me it was severe beatings.

10. On one occasion in November 2014, I was in my bedroom playing the Playstation when JENKO came into the room. JENKO accused me of answering back and started to punch me. He struck me to the left side of my jaw and knocked me out. When I came too JENKO standing over me and shaping up to hit me again. There was no lead up to the assault he just lost it for no reason. JENKO then left the room.

13. Over the weeks ahead, if I showed any signs of not being fully compliant with what JENKO wanted or he believed that I wasn’t under his control he would beat me. This would range from a single punch to a severe beating with being stomped or punched.

15. On another occasion I was in the bath having a shower when JENKO came in. JENKO was ranting about something. You had to concentrate when he was ranting cause if you didn’t answer properly or to JENKO’s satisfaction he would no crazy and be violent towards me. I was having a shower when he was ranting. I didn’t answer appropriately and this triggered JENKO to start punching me. I tried to defend myself but this didn’t help. I was struck to the head several times. After I was assaulted he would constantly repeat the same rubbish that he was ranting about. His rants go for hours until the drugs wear off. This is mainly when he is using opiates. When he uses other drugs his rants weren’t as bad. In the 15 years that I have been using drugs I’ve never seen anyone that was is that affected by opiates.

16. Around my birthday (24th November 2014) I was in the bathroom using drugs. Once I finished I went to my bedroom. I was aware that JENKO was using some form of drug either heroin or methadone. We were talking about something when JENKO went crazy for no reason. JENKO had me up against the wall waving a machete towards me. He punched me a number of times to the face. I was trying to defend myself. I was pleading with him to stop but it didn’t work. JENKO continued punching me. I fell to the ground and there was blood everywhere. While I was on the ground JENKO started to stomp on me. Stuart came into the room and tried to get him to stop but JENKO turned on him.

Stuart said, “The Cops are coming”.

This made him stop punching me and Stuart.

I said, “If they come you don’t want me here. They’ll see the blood”.

As a result JENKO took me to the laundry which is separate to the building he was living in. JENKO had a key. When we reached the laundry JENKO was going to lock me in the room but he decided to stay with me, not letting me out of the room.

6. The Crown case in relation to the murder charge (count 1) is that Mr Jenkin detained Mr Dower in his home unit for the purpose of extorting money from him by using his cash card. In the course of that detention he assaulted him and left him to die. The defence case is that Mr Dower was at the unit to dry out from alcohol addiction and that he fell and sustained an injury that caused his death.

7. As I explained in Jenkin (No 8), in light of that dispute and the issues that arise in the trial, evidence of Mr Jenkin’s violent disposition is clearly relevant. However, general evidence of acts of violence perpetrated by him on other people lacks the “significant probative value” required for admission under s 97 of the Evidence Act 1995 (NSW). In reaching that view, I have taken into account the judgments of the majority in Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52 and, in particular, those passages set out in Jenkin (No 8) that make it clear that in a case of this kind (that is, a case where the issue is whether the alleged offence occurred rather than a case where identity is the issue) it is not incumbent on the party tendering the evidence to establish any particular degree of similarity between the conduct sought to be proved and the tendency alleged and evidence said to support that tendency. I have also considered, in accordance with s 97(1)(b) the other evidence to be adduced by the Crown.

8. The evidence in paragraphs 9, 10, 13, 14 and 15 of Ms Mara’s statement does little more than establish (if accepted) that Mr Jenkin had a tendency to be violent and cruel. It lacks significant probative value. Further, like the evidence I rejected in Jenkin (No 8), the evidence does not fit within the third tendency articulated in the tendency notice because there is no suggestion that the victim of the violence was detained. The Crown Prosecutor agreed in argument that the tendency expressed must be read conjunctively, that is the tendency to intimidate and to assault related to people who were detained.

9. Accordingly, the evidence in paragraphs 9, 10, 13, 14 and 15 of Ms Mara’s statement is not admissible as tendency evidence.

10. The evidence in paragraph 16 includes the assertion that “Jenko was going to lock me in the room but he decided to stay with me, not letting me out of the room.” When this aspect of the evidence was raised, counsel for the accused submitted that “it does not meet the test of s 101, that it’s still – it doesn’t meet the test of 101”. I took this to be a concession that the evidence had significant probative value for the purpose of s 97. It would not be necessary to rely on s 101 unless the evidence satisfied the test in s 97.

11. Having considered the probative value of the evidence for myself, I consider that the concession was made correctly. While it is not a clear cut case, given the relative generality of the evidence and the manifest differences between the kind of domestic violence asserted by Ms Mara and the conduct alleged in relation to count 1, I am bound to apply the decision of the majority of the High Court in Hughes v The Queen. That decision requires that attention be given to the issues in the trial. The central issue and contest in this case is whether Mr Jenkin detained the deceased and assaulted him or whether he was assisting him to dry out from alcohol. In light of that issue, evidence capable (if accepted) of establishing a tendency to detain, intimidate and assault people is evidence possessing significant probative value for the purpose of s 97. In reaching that conclusion, I have considered other evidence that has been led and that is expected to be led on this issue.

12. Mr Lowe raised an issue concerning the reliability of the evidence in paragraph 16. That paragraph asserts that the incident in question took place “around 24 November 2014”. Ms Mara claims to be able to identify that date because it is her birthday. It became an agreed fact on the voir dire that Mr Jenkin was in custody from 18 September 2014 until 17 January 2015. In other words, he could not have detained and assaulted Ms Mara on or around 24 November 2014. This places a very large question mark over the reliability of this aspect of Ms Mara’s evidence.

13. In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, a majority of the High Court held that issues of reliability play no part in an assessment of the probative value of evidence for the purposes of ss 97 and 137 of the Evidence Act: see for example at [51]-[58]. The assessment of probative value must proceed on the basis that the evidence is accepted. I do not accept that the evidence falls within the type of evidence referred to by the majority in IMM v The Queen at [50] and [57]-[58]. In other words, the evidence is not “inherently incredible or fanciful or preposterous” such that its admission would constitute an “undue waste of time”: see s 135(c). It was conceded that the Crown may adduce evidence that Ms Mara is mistaken about the date. In fact, other aspects of her statement (paragraphs 17 and 18) allow for the possibility that the Crown may be able to lead evidence of Ms Mara’s attendance on a doctor on a particular date to clarify when the alleged incident occurred.

14. Turning to s 101 of the Evidence Act, I am satisfied that the probative value of the evidence in paragraph [16] substantially outweighs any prejudicial effect it may have. I accept that allowing the Crown to elicit evidence of uncharged acts of violence has some potential to cause prejudice. However, there is very little risk of the evidence being misused by the tribunal of fact given that the trial is proceeding by Judge alone. At least one of the bases of the accused’s application for the Judge alone trial was the fact that it was expected that the Crown would adduce tendency evidence and other evidence of criminal conduct not directly related to the charges on the indictment. I also accept that there is some prejudice in the accused being required to confront, and contradict, this evidence along with the more central allegations in the trial. However, that is a consideration in every case and, because of the significant credibility issue arising out of what appears to be a definite and significant mistake in relation to the date of the incident, it seems that counsel may cross-examine on the incident in any event: Tcpt, 17 May 2018, p 862.

15. For those reasons, the evidence in paragraph 16 of Ms Mara’s statement is admissible as tendency evidence.

16. I have to return to paragraph 9 because there is one aspect of that paragraph that is admissible on a basis other than tendency. Ms Mara refers to assaults committed on “Stuart”. It is accepted that this is a reference to Stuart Cowan who is the alleged co-conspirator in relation to count 2 (conspiracy to murder Rachel Silvester). The Crown seeks to rely on this evidence to establish the nature of the relationship between the accused and Mr Cowan and the context in which Mr Cowan acted on Mr Jenkin’s direction or request to take steps to arrange to kill a person who may become a witness against Mr Jenkin in relation to the death of Mr Dower. I accept that the evidence is relevant on this limited basis. It will not be used as tendency evidence in relation to any of the counts on the indictment. It will not be used at all in respect of the murder count. Its use will be limited to explain the conduct of Mr Cowan and the nature of the relationship between the step-brothers. The probative value of the evidence is not outweighed by the danger of unfair prejudice.

17. Accordingly, the evidence of Ms Mara that the accused assaulted Mr Cowan is admissible but pursuant to s 136 of the Evidence Act, its use will be limited to explain the nature of the relationship between the men and to place the actions of Mr Cowan in context.

18. Finally, I turn to whether a direction under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 should be made. I have taken into account the accused’s opposition to the direction and the fact that this casts the onus on the Crown Prosecutor to establish that it is in the interests of the administration of justice to make the order. I am satisfied that it is. I have taken into account the nature of the relationship between the accused and the witness, at least as alleged in her statement. I have given significant weight to the opinions offered by the clinical psychologist (Angela Petrolo) in Ex VD-J. Ms Petrolo says that giving evidence of these matters will require Ms Mara “to be exposed to an extremely stressful situation” by revisiting “a very traumatic period of her life”. She says that using the AVL facility will go some way to “minimise the impact of the stress and trauma she may experience” in giving evidence. Against that, I have considered the submission that the demeanour of the witness is important in an assessment of her credibility. One witness (Mr Bitton) has already given evidence by audio visual link and his demeanour was readily assessed notwithstanding that he gave evidence from a remote location. In this instance, Ms Mara is in Wollongong and, if the technology proves to be inadequate, the direction can be revoked and she can give evidence in the courtroom.

19. For those reasons, I make a direction s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 that Ms Mara may give evidence by audio visual link from a place other than the courtroom .

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Decision last updated: 21 May 2018