R v Jenkin (No 18) (Verdict)

[2018] NSWSC 978

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Jenkin (No 18) (Verdict) [2018] NSWSC 978

Hearing dates:

2 May 2018 – 20 June 2018

Date of orders:

27 June 2018

Decision date:

27 June 2018

Jurisdiction:

Common Law - Criminal

Before:

Hamill J

Decision:

Verdicts of:
(1) Not guilty of murder
(2) Guilty of manslaughter
(3) Guilty of conspiracy to murder

Catchwords:

CRIMINAL LAW – murder – conspiracy to murder – trial by Judge alone – circumstantial case – body in surfboard bag – decaying corpse – complications in medical evidence – body dropped out of window after death – possible explanation for a number of injuries observed on post mortem examination – where avulsed tooth located in bowel – indicates trauma occasioned before death – whether other injuries occasioned before or after death – whether evidence capable of excluding other perpetrators – analysis of circumstantial case

 

CRIMINAL LAW – murder – where series of assaults – where act causing death not known – “homicidal violence” – whether Crown must prove intention coincides with act causing death – reckless indifference to human life – whether accused foresaw probability of death

  CRIMINAL LAW – evidence that may be unreliable – warnings that would be given to a jury – whether woman with hearing difficulties heard a man moaning in the morning – nobbling of witness – consciousness of guilt – disposal of corpse – attempt to “off” witness – analysis of evidence – significant malfeasance

Legislation Cited:

Crimes Act 1900 (NSW), ss 18 and 26
Criminal Procedure Act 1986 (NSW), ss 132 and 133
Evidence Act 1995 (NSW), ss 97, 101, and 165

Cases Cited:

Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17
Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18
Campbell v R [2014] NSWCCA 175
Campbell v The Queen (1981) WAR 286
Davies v The King [1937] HCA 27; (1937) 57 CLR 170
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Hughes v The Queen [2017] HCA 20; 92 ALJR 52
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Lane v The Queen [2018] HCA 28
McEwan v The Queen [2013] VSCA 329
McPhillamy v R [2017] NSWCCA 130
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2
R v Brooks [2017] NSWSC 188
R v Crabbe (1985) 156 CLR 464; [1985] HCA 22
R v Jenkin [2018] NSWSC 634
R v Jenkin (No 2) [2018] NSWSC 697
R v Jenkin (No 5) [2018] NSWSC 730
R v Jenkin (No 8) [2018] NSWSC 704
R v Jenkin (No 10) [2018] NSWSC 705
R v Jenkin (No 14) [2018] NSWSC 837
R v Jenkin (No 17) [2018] NSWSC 907
R v Lawford (1993) 61 SASR 542
R v PL [2009] NSWCCA 256
R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455
R v Ryder [1995] 2 NZLR 271
R v Styman; R v Taber [2004] NSWCCA 245
R v Tietie (1988) 34 A Crim R 438
Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
The Queen v Crabbe (1985) 156 CLR 464; [1985] HCA 22
Timbu Kolian v The Queen (1968) 119 CLR 47; [1968] HCA 66
White v Ridley (1978) 140 CLR 342; [1978] HCA 38
Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31

Texts Cited:

Gatti and Krishnamachariar, Wills’ Principles of Circumstantial Evidence (7th ed, 1936, Butterworth & Co)

Category:

Principal judgment

Parties:

Regina
Mark Kenneth Jenkin

Representation:

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

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

File Number(s):

2015/00345562

Publication restriction:

Non-publication orders were made on 9 May 2018 protecting the identity of 15 witnesses.

Judgment

1. Late on 16 April 2015, the decaying corpse of Mark Dower was found secreted inside a surfboard bag in an external laundry of a large residential housing estate at Crana Place, Mangerton. The timing and cause of Mr Dower’s death is controversial. Similarly, the circumstances in which he came to be hidden in this inauspicious place, and left there to rot, is disputed. On 24 November 2015, Mark Kenneth Jenkin was charged by police with Mr Dower’s murder. He was also charged with conspiracy to murder RS, a person who the prosecution says assisted Mr Jenkin to hide the body in the laundry.

2. On 2 May 2018, Mr Jenkin was arraigned in the Supreme Court sitting in Wollongong on three counts. The first alleges that he murdered Mr Dower some time between 18 March 2015 and 9 April 2015. The second count is the conspiracy to murder RS. The third count, couched as an alternative to the second, is that he solicited Stuart Cowan to murder RS. Mr Jenkin pleaded not guilty to each charge. Accordingly, it is for the prosecution to prove Mr Jenkin’s guilt and to do so beyond reasonable doubt.

3. The day before the arraignment, on the application of Mr Jenkin and with the consent of the Director of Public Prosecutions, I made an order under s 132 Criminal Procedure Act 1986 (NSW), that Mr Jenkin be tried by Judge alone. [1] Section 133(1) provides that my verdict will have the same effect as a jury verdict and that I may make any finding that could be made by a jury. Section 133(2) mandates that I record the relevant principles of law and the findings of fact on which I rely. Section 133(3) provides that I must take into account any warning that would be given to a jury.

   1. R v Jenkin [2018] NSWSC 634.

4. The overriding legal principle by which this judgment is guided is that the prosecution must prove Mr Jenkin’s guilt and must do so beyond reasonable doubt. While it is not required to prove each disputed fact to that standard, it must prove the essential elements of any particular charge beyond reasonable doubt before a verdict of guilty can be returned in respect of that charge. If there is any reasonable doubt in relation to any element, I must find Mr Jenkin not guilty. Even if I think it is more likely than not that he is guilty, or if the evidence leads me to believe strongly that he is guilty, I must give Mr Jenkin the benefit of any reasonable doubt that I have in relation to his guilt. The standard of proof is extremely high, perhaps the highest standard ever devised by any legal system in history.

5. Where as here, the prosecution relies on a circumstantial case, the Crown must exclude any reasonable inference or hypothesis consistent with Mr Jenkin’s innocence (or, I suppose more correctly, a hypothesis inconsistent with his guilt).

The case of each party in a nutshell

6. There is no dispute that Mr Dower spent the last five or so days of his life in Mr Jenkin’s flat. However, the circumstances in which he was staying there and what happened to him during that period are hotly contested.

7. The prosecution case is that Mr Dower was detained in Mr Jenkin’s flat in Unit 13 of 4 Crana Place at Mangerton. It alleges that Mr Jenkin assaulted him, intimidated him and used his cash card to withdraw money, or attempt to withdraw money, from automatic teller machines (ATM) in various local businesses including Metro Petroleum and the Crown Convenience store. The prosecution case is that a number of injuries observed on post mortem examination were caused by assaults committed by Mr Jenkin. It contends that the severity of the assaults, evidenced by the nature and extent of the injuries, gives rise to an inference that Mr Jenkin intended to inflict grievous bodily harm upon Mr Dower. Mr Dower became weak and needed medical treatment. No such treatment was provided and the Crown contends that this supports a conclusion that Mr Jenkin acted (or failed to act) with reckless indifference to human life. The Crown case is that Mr Jenkin and the witness RS later moved the corpse from his apartment to an external laundry in the housing complex.

8. In relation to the conspiracy (and alternative solicit) charge, the Crown case is that Mr Jenkin was in custody during the currency of the police investigation into the death of Mr Dower. In the course of two telephone calls made from gaol, he entered a criminal agreement with his brother (Stuart Cowan) to murder RS. He solicited Mr Cowan to obtain heroin and to give RS a “hot shot” (which the evidence suggested is an overdose of heroin) designed to kill her. The motive was to stop RS from talking about what she had seen in Mr Jenkin’s unit and the movement of Mr Dower’s body. Mr Cowan agreed to carry out the plan and the prosecution relies on evidence that he took steps to find RS and to obtain heroin from a local drug dealer.

9. There is no onus of proof on the accused. He is not required to establish anything to any particular legal standard. While he ran a positive case through the prosecution witnesses and by giving evidence and exposing himself to cross-examination, the onus of proof remains on the prosecution. It never shifts.

10. His case is that Mr Dower was an alcoholic and was staying in Mr Jenkin’s unit as a matter of choice and to avoid being assaulted by other people who lived nearby. He was not detained, assaulted or intimidated, at least not by Mr Jenkin. He often fell over and was assaulted by other local residents. Any injuries occasioned before he died were the result of falls or assaults committed by others. Mr Jenkin said he observed a number of injuries on Mr Dower when he brought him home from Jodie Pike’s unit. Mr Dower told him that Mr Pike had assaulted him. Mr Dower was at Mr Jenkin’s flat for around five or six days. During that time, Mr Dower had a number of falls. At one stage he fell flat on his face in the presence of Mr Jenkin and two or three other people. Most significantly, very shortly before he died, Mr Dower had an awkward and heavy fall in the bathtub and appeared to have struck his head on a hand railing within the bathtub. He died within about half an hour of this fall, during which time Mr Jenkin performed CPR including forceful chest compressions.

11. The defence case is that many of the injuries observed at the autopsy may have resulted from the treatment of the body after Mr Dower’s death. There was peculiar evidence, or a suggestion, that RS told people that she had punched the body after death. More convincingly, there was evidence (in both the prosecution case and the defence case) that the body was dropped (either deliberately or accidentally) out of a window from the first floor of Mr Jenkin’s flat. Mr Jenkin’s attempt at CPR may also have caused some of the rib fractures observed on post mortem examination.

12. In short, Mr Jenkin did not do any act that caused death and did not act with an intention to inflict grievous bodily harm.

13. As to the alternative basis of liability for murder – reckless indifference to human life – and the alternative charge of manslaughter, it was at one stage submitted that he did not owe any relevant duty of care recognised by the law. This submission was not made in the final address but it remains a matter that the Crown must establish beyond reasonable doubt. In addition to the fact that he did not commit any act of violence or otherwise mistreat Mr Dower (on the contrary, he was nursing him), he did not foresee the probability of death resulting from Mr Dower’s deteriorating condition. Further, Mr Dower did not want to be taken to a hospital because he had, in the past, been subjected to involuntary admissions to mental institutions, including being subjected to electro-shock therapy.

14. As to the offence of conspiracy to murder, and soliciting Mr Cowan to murder, Mr Jenkin’s case is more opaque. As I understood this part of his evidence, he suggests that he was taking a lot of drugs in gaol and was rambling when he said the things recorded in the telephone calls. He had no intention that Mr Cowan should act on the suggestion that Mr Cowan give RS a hot shot, let alone that she should be killed. He said that, if he wanted to “dispose of” RS, he would have done it himself. [2]

    2. T 1885.

WHAT THE prosecution must PROVE

15. The Crown does not have to establish the truthfulness or reliability of any or all of its witnesses. Nor does it have to establish its version of the numerous factual disputes that arose in the course of the trial. The evidence must be considered as a whole. However, it is wrong to approach the case on the basis that I prefer the evidence of the Crown witnesses to that of the accused. The Crown must establish its case beyond reasonable doubt. To do this, it must establish beyond reasonable doubt the legal elements of the particular offence under consideration.

16. In relation to the murder of Mr Dower, [3] the Crown must establish the following elements or ingredients beyond reasonable doubt:

    3. Crimes Act 1900 (NSW), s 18(1)(a).

1. The death of Mr Dower.

2. That his death was caused by the voluntary act, acts or omission of the accused.

3. That the act or acts were done with intention to inflict grievous bodily harm (the Crown concedes it cannot prove an intention to kill Mr Dower). Or;

4. That the act(s) or omissions were done with reckless indifference to human life. This means that the accused realised that Mr Dower’s death was the probable consequence of his act or omission, but continued to do the act or omission (that is, he failed to act). [4]

   4. R v Crabbe (1985) 156 CLR 464; [1985] HCA 22; Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27.

17. If the prosecution fails to prove that the accused is guilty of murder, there is a possible alternative verdict of manslaughter. The Crown contends that manslaughter might arise in two ways. The first is that the accused caused the death of Mr Dower by committing an unlawful and dangerous act. Secondly, it says that the accused is guilty of manslaughter by gross or criminal negligence.

18. To prove manslaughter by unlawful and dangerous act, [5] the prosecution must prove:

1. The accused did a voluntary act (or acts) that caused Mr Dower’s death.

2. The act was unlawful.

3. The act was dangerous in the sense that it carried with it the appreciable risk of serious injury. [6]

   5. Crimes Act 1900 (NSW), s 18(1)(b).

   6. Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31.

19. To prove manslaughter by gross or criminal negligence, the prosecution must prove:

1. The death of Mr Dower was caused by the voluntary act or omission of Mr Jenkin.

2. Mr Jenkin owed Mr Dower a duty of care.

3. Mr Jenkin breached that duty of care.

4. The nature and extent of the breach of duty – that is the departure from the standard of care expected of a reasonable person – was so gross or extreme that it was criminal in the sense that it warrants criminal punishment.

20. In relation to the conspiracy to murder, [7] the prosecution must prove beyond reasonable doubt:

    7. Crimes Act, s 26.

1. There was an agreement between Mr Jenkin and Stuart Cowan to commit the murder of RS.

2. Mr Jenkin participated in the agreement in the sense that:

1. he agreed with Stuart Cowan that the unlawful objective of the agreement be carried out; and

2. at the time of the agreement Mr Jenkin intended that the objective be carried out.

21. If the Crown fails to prove the conspiracy, it relies on an alternative charge of solicit to murder. [8] To establish this alternative offence, the prosecution must prove beyond reasonable doubt that the accused:

1. Communicated with another person, namely Stuart Cowan.

2. Intended to persuade Stuart Cowan to murder RS.

3. At the time of the communication, intended that RS would be murdered by Stuart Cowan.

   8. Crimes Act, s 26.

circumstantial evidence

22. The prosecution case is a circumstantial one. It relies on inferences that might be drawn (reasonably and logically) from the proved facts. The legal principles I apply in assessing this circumstantial case are as follows.

23. Unless an intermediate fact is indispensable to the chain of reasoning leading to a finding of guilt, the prosecution need not prove each individual item of evidence beyond reasonable doubt. However, if the evidence supporting the primary fact is weak, it is unsafe to draw inferences from that fact. The circumstantial case should be considered as a whole rather than on a piecemeal basis.

24. Part of the Crown’s circumstantial case is based on “tendency evidence”. The Crown has taken the cautious approach that it must prove its tendency case beyond reasonable doubt. This is dealt with separately below.

25. There are at least two aspects of the prosecution’s circumstantial case that are indispensable to the chain of reasoning that might lead to a finding of guilt. They are central to the resolution of the issues in the trial and the disputes between the parties. These matters must be established beyond reasonable doubt.

26. The first is that Mr Dower died as a result of injuries deliberately inflicted upon him prior to his death, or that these injuries were a substantial or significant cause of his death. [9] The Crown must prove that the injuries were not the result of natural causes, accidental falls or other misadventure. There is a body of evidence showing that Mr Dower was an alcoholic and sometimes fell over. There are significant and difficult questions arising from the evidence of the medical experts in relation to this issue. Two matters complicate the findings found on post mortem examination. The first is the degree of decomposition of Mr Dower’s corpse. The second is the fact that a number of injuries identified by the pathologists may have been caused after Mr Dower died, either as a result of attempts to resuscitate him or because his body was dropped from Mr Jenkin’s first floor unit. Because this matter is indispensable to the chain of reasoning, it must be proved beyond reasonable doubt.

    9. Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 at [411].

27. The second and related issue that must be proved beyond reasonable doubt is that it was Mr Jenkin, and not somebody else, that caused the injury or injuries that caused death. There is evidence that other people, in particular a Mr Jodie Pike, assaulted Mr Dower in the weeks, and possibly days, before his death. The prosecution must exclude beyond reasonable doubt the possibility that somebody other than Mr Dower inflicted the injuries that caused Mr Dower’s death.

28. In lawyer’s language, both of these questions concern the issue of “causation”. Causation is one of the essential elements of homicide – has the Crown established that the act (or omission) of the accused person caused the death of Mr Dower? This is “not a philosophical or a scientific question, but a question to be determined by applying [my] common sense to the facts as [I] find them, [while] appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter.” [10] The question is whether the accused’s act (or omission) caused or substantially contributed to Mr Dower’s death.

    10. See, for example, Timbu Kolian v The Queen (1968) 119 CLR 47; [1968] HCA 66 at 69 (Windeyer J) and Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 at [387] (Mason CJ) citing Campbell v The Queen (1981) WAR 286 at [290].

THE EVIDENCE

29. The prosecution called 42 civilian or lay witnesses, mostly local residents or friends and associates of either the accused or the deceased or both, as well as 22 police officers and 5 expert witnesses. Some of the police officers were called to give expert evidence. The prosecution tendered edited statements of three civilian witnesses who died since making their statements, as well as the statements of one police officer and an employee of the ANZ bank. One of the civilian witnesses was unable to return to continue cross-examination and the Crown Prosecutor withdrew her evidence. [11] The Crown tendered 76 exhibits marked Ex A to Ex VVV.

    11. R v Jenkin (No 17) [2018] NSWSC 907.

30. Mr Jenkin gave evidence, called one lay witness and one expert witness. He relied on parts of the evidence adduced in the prosecution case and statements obtained in the course of the police investigation. He tendered 21 exhibits marked Ex 1 to Ex 21.

31. In reaching the factual conclusions that I will set out towards the end of this judgment, I have taken into account all of this evidence. I have not dealt with the evidence in a piecemeal fashion but have considered it as a whole. However, there are some parts of the evidence that I have disregarded altogether. This is because I have formed the view that the evidence is so unreliable that it is not safe to act upon it or because, set against the other evidence, it cannot be correct. I have not referred to every piece of evidence, or every witness, in writing this judgment.

Evidence that may be unreliable

32. The prosecution relied on a great deal of evidence that is of a kind that the law recognises may be unreliable. If the trial was conducted before a jury, unless there was some good reason, the jury would be warned that the evidence may be unreliable and the reasons it may be unreliable. [12] I take into account such warnings in dealing with the evidence that may be unreliable. Some of the witnesses fall into more than one category of witness whose evidence may be unreliable.

    12. Evidence Act 1995 (NSW), s 165.

33. I have approached this evidence with considerable caution. I will deal generally with the type of evidence to which these warnings would apply and attempt to identify the witnesses to which it applies in the course of the judgment.

Hearsay: s 65(1)(a)

34. Some of the evidence was elicited from sources other than the witness who saw, heard or perceived the event or conversation about which they gave evidence. For example, three statements were tendered from witnesses who have died. Other witnesses gave evidence of what they were told by others, including (in a number of cases) by Mr Dower himself. Hearsay evidence is generally not admissible and, when it is admitted as an exception to the hearsay rule, it must be treated with great caution because of its potential to be unreliable.

35. Because the accused was not present, it is impossible for him or her to know whether the things asserted were in fact said and, if so, the circumstances in which they were said. The person who claims to have seen or heard the event in question cannot be cross-examined and the representation was not made under oath or affirmation. Further, there may be issues concerning the reliability of the original source of the hearsay evidence. An example is the evidence of what Mr Dower told people in the weeks before his death. While the evidence establishes that Mr Dower was a gentle and highly intelligent man, it also shows that he was an alcoholic and had a history of psychiatric illness.

Admissions: s 165(1)(a)

36. Some of the witnesses gave evidence of things said by the accused that may amount to admissions. This evidence may be unreliable for a number of reasons. The first is that the evidence was not properly or clearly recorded. The second is that the witnesses themselves were people whose memories may have been affected by drug or alcohol use. The third is that the witnesses were not asked to recall what was said for, at least, some weeks after the conversations of which they gave evidence. Mr Riley may be an exception to that proposition. The result is that the versions of the conversations, as recorded in their police statements and later given in evidence, were likely to be a reconstruction of those conversations. The fourth is that the “Mangerton rumour mill” may have influenced or contaminated their recollection. Detective Adams agreed that the longer the investigation goes, the more likely the “rumour mill” may contaminate the witness’s version of events. [13] CA also spoke of the “rumour mill” but said “I am not here to talk about rumours”. [14] Most colourfully, DP said: [15]

Q. If you would go to page 28, and you can see, you say just above halfway, "yeah, the Mangerton fucking grapevine, mate"?

A. Yeah.

Q. What do you mean by that?

A. Mangerton is full of people on drugs that just have nothing better to do than hear little snippets of stories and make the rest up you. Know what I mean.

Q. Is that common practice, is it, in Mangerton?

A. My oath, my oath. I have done everything but fly to the moon.

13. T 1284.

14. T 429.

15. T 939.

37. I accept that after Mr Dower’s body was found, rumours and scuttlebutt circulated amongst the residents of Crana Place and Myuna Way. This could have had a direct or subliminal impact on the witnesses’ recall of events.

38. For example, there were rumours that RS may have sparred with the dead body. [16] However, neither of the people present at the time (Mr Jenkin and RS) gave evidence that this actually happened. I do not accept that it did.

    16. T 548.

39. Another matter to consider in assessing the potential unreliability of the admissions, is that the evidence of the admissions was sometimes inconsistent with the witness’s earlier versions or in comparison with what other witnesses said.

40. Finally, because of the nature of this evidence, it is difficult for the accused person to test the evidence or to know or understand how the evidence has been affected by the matters referred to in the preceding paragraphs.

Evidence of prison informers and those who received benefits: s 165(1)(e)

41. Evidence of prison informers is notoriously unreliable. Such witnesses often have a motive to give evidence against the accused and their involvement in the penal system and criminal milieu often means their moral and ethical standards are different from ordinary members of the community. Juries are given strong directions about such witnesses.

42. Michael Riley, who gave evidence of admissions allegedly made by the accused, was a witness who fell into this category. Mr Riley was clearly motivated to receive a benefit from giving evidence and was in gaol for offences of dishonesty (goods in custody, stealing). He received, or sought to receive, a reduction in his sentence as a result of the information he provided police.

43. Other witnesses in this case, while not prison informers, are witnesses whose reliability is affected by similar considerations. Many are part of the criminal milieu or involved in the sale or misuse of drugs. Some are motivated to obtain a benefit by providing information to the police, such as a reduction in their sentence or avoidance of criminal charges that might otherwise have been laid.

44. RS received what she called “a pardon” and was never charged with any offence arising out of her (admitted) disposal of Mr Dower’s body. The statements she made to police were “induced” in the sense that there was a promise that the information would not be used against her. She could have been charged as an accessory after the fact or other charges arising out of interfering with the corpse. She had a clear motive to give evidence adverse to Mr Jenkin.

45. DF and SM also received “letters of comfort” from the police and received benefits for assisting the police. There were other witnesses who were clearly involved in criminal activity; drug dealing, burglaries and so on.

46. In relation to all of this evidence, it is necessary to assess the evidence in light of the principle that it may be unreliable.

Evidence of witnesses who might have been involved in the events giving rise to the proceedings: s 165(1)(d)

47. A number of the witnesses either were, or might reasonably be supposed to have been, criminally concerned in the events giving rise to the proceedings. This included Jodie Pike, Mark Spicer, Paul Turner, RS, AR, DF, PL and DP. In some instances the involvement was either peripheral or in the failure to disclose information to the police but the fact remains that the witnesses reliability may be affected by their own involvement in the events.

48. People who are criminally concerned in the events giving rise to the proceedings have a motive to minimise their own involvement and to blame others. It is particularly convenient to point the finger at the accused.

Evidence that may be affected by age or mental or physical illness: s 165(1)(c)

49. Many of the witnesses had patent mental health issues, drug addictions or health issues that may have impacted on the reliability of their evidence. Such witnesses may be unreliable and it is difficult for a tribunal of fact to determine what parts of their evidence, if any, can be relied on.

Identification

50. One witness (Craig Maguire) gave evidence in which he purported to identify Mr Jenkin in the dock. That evidence was rejected when it came out (non-responsively) in evidence in chief. However, in cross-examination, a series of propositions were put to the effect that Mr Maguire’s assailant was not the man in the dock. Mr Maguire said that it was. He also provided a description of the person who assaulted him and this was generally consistent with the appearance of the accused. The history of the law demonstrates that identification evidence may be unreliable and is particularly dangerous and seductive when given by a witness like Mr Maguire who was a simple and damaged man, but a man clearly attempting to tell the truth. “Dock identification” is close to worthless, particularly where the witness is not very familiar with the appearance of the accused. [17] I must take into account the very strong warnings that would be given to a jury in relation to the evidence of Mr Maguire.

Particular witnesses whose evidence may be unreliable

17. Davies v The King [1937] HCA 27; (1937) 57 CLR 170; Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17.

Witnesses identified by the accused in advance of the addresses

51. In the course of submissions made in advance of final addresses, counsel identified a number of witnesses whose evidence may be unreliable. I will set out in very brief terms the reasons I accept that this evidence may be unreliable. In some cases, I will indicate that I have disregarded the evidence. In one case, I rejected the submission that the evidence should be subject to a warning.

1. Jodie Pike is an alcoholic and a person who might reasonably be suspected of being involved in the events leading to Mr Dower’s death. [18] I do not accept the Crown’s submission that a warning is not appropriate because the evidence implicating Mr Pike in assaulting the deceased largely comes from Mr Jenkin. There is other evidence that he hit Mr Dower, including from Mr Pike himself, and in the form of admissions he made to others. In any event, the fact that the accused points the finger at the witness is no basis to exclude Mr Pike from the catalogue of witnesses whose evidence may be unreliable. He has a motive to downplay his own violence towards Mr Dower and to implicate Mr Jenkin. His medical condition (alcoholism) is a matter that may affect his memory and reliability.

   18. Evidence Act, s 165(1)(c) and (d).

2. Mark Spicer is another witness who may have assaulted Mr Dower and who is an alcoholic. [19]

   19. Evidence Act, s 165(1)(c) and (d).

3. Dusan Vukadinovic has a substantial history of mental illness and alcoholism. [20] There was significant detail of this in the trial and the witness was defensive about it when cross-examined. It seems he has suffered from hallucinations and grandiosity. The psychiatric issues are chronic. There is no doubt that this may affect his reliability, although there is nothing to suggest that the matters about which he gave evidence relevant to the trial were the result of hallucinations.

   20. Evidence Act, s 165(1)(c).

4. NB gave evidence of admissions allegedly made by the accused. Evidence of admissions may be unreliable. [21] The alleged admission was not recorded and the witness was not called upon to recount (or, more likely, reconstruct) his evidence of the relevant conversation until a long time after the events. The accused also sought a warning based on the inference that he had a mental illness because of the nature of the medication (Seroquel) he said he used to help him sleep. Other evidence in the case suggested that Seroquel is an anti-psychotic medication. While I take this into account, the matter was not really explored and there is no evidence to suggest that he was ever psychotic. He denied that the drug was taken due to problems with his “thought processes”.

   21. Evidence Act, s 165(1)(a).

5. Mark Lorenzetti gave evidence of what he was told by Mr Dower before the latter died. It is hearsay evidence and may be unreliable. [22] A further layer of unreliability arises due to what is known of Mr Dower. It is clear that the deceased was an alcoholic with longstanding mental health issues. He had been admitted to psychiatric institutions both in Finland and Australia. In assessing the (hearsay) evidence of what he told Mr Lorenzetti and others, it is important to take into account the potential unreliability of the person (Mr Dower) who made the assertions.

   22. Evidence Act, s 165(1)(a).

6. AR was a terrible witness. I wondered if he could remember his own name without clear guidance. [23] He told the Court he had taken “heaps of drugs” and judging from his performance in the witness box this was probably an understatement. There is evidence that he may have offered or agreed to move the body (and thus had some involvement in the events giving rise to the prosecution). His evidence may be unreliable. [24] I would not act on AR’s evidence unless it receives support from other evidence.

   23. Cf R v Jenkin (No 5) [2018] NSWSC 730.

   24. Evidence Act, s 165(1)(c) and (d).

7. CA was a drug addict who almost certainly ransacked the premises of Mr Jenkin after the latter was in custody. [25] He had a very long criminal history for offences of dishonesty and admitted that he did an act calculated to pervert the course of justice by falsely claiming that he had committed an offence with the intention of exculpating his girlfriend who would otherwise be sent to gaol. [26] I would not act on CA’s evidence in the absence of direct supporting evidence.

   25. Evidence Act, s 165(1)(c).

   26. Ex 6, T 561-567.

8. RS is an important witness and her evidence must be scrutinised with considerable scepticism. She was (on her own account, but not that of Mr Jenkin) criminally concerned in the disposal of Mr Dower’s dead body. [27] She was a drug addict who used heroin at the time of the events about which she gave significant evidence. [28] She insisted on receiving an inducement before providing police with her statement.

   27. Evidence Act, s 165(1)(d).

   28. Evidence Act, s 165(1)(c).

9. Haralambos Chrissostomidis’ evidence may be unreliable because he is an alcoholic and some of his evidence was hearsay emanating from Mr Dower. [29]

   29. Evidence Act, s 165(1)(a) and (c).

10. SM was a witness involved in drugs and other criminal activity. He gave evidence of alleged admissions made by Mr Jenkin, including an important admission that Mr Jenkin told him he “gave [Mr Dower] a couple in anger” and “he fell back and hit his head on the bath.” SM received a substantial benefit for offering to give evidence against Mr Jenkin. Police provided him with a “letter of comfort” used in his sentencing hearing for unrelated criminal offences. His evidence falls into a number of categories of evidence that may be unreliable. [30]

    30. Evidence Act, s 165(1)(a), (c) and (by analogy) (e).

11. Dale Bitton has chronic mental health and alcohol issues and his evidence may be unreliable. [31] His demeanour on the audio visual link suggested he was having some difficulties in focussing although he was a succinct and direct historian, punctuating his evidence with the imperative “Next!” [32] When the cross-examination turned to his mental health issues he said: “here we go.”

    31. Evidence Act, s 165(1)(c).

    32. This does not appear to be captured in the transcript.

12. DF is a drug dealer who received a substantial reduction in her sentence as a result of her offer to assist the police in the prosecution of Mr Jenkin. [33] She was also a user of hard drugs. [34]

    33. Her situation is analogous to that of a prison informer.

    34. Evidence Act, s 165(1)(c).

13. For reasons I will articulate when I deal with the tendency evidence, I do not propose to act on the evidence of Craig Maguire at all. In spite of his simplicity, apparent truthfulness and the dock identification elicited in cross-examination, his evidence is so potentially unreliable that I cannot properly act upon it.

14. Lisa Mara was a drug addict at the time and the substance and tone of her evidence suggested a deep animosity towards the accused. She had been “nobbled” by one of the police investigators who told her on the day she was to give evidence that the date of the critical incident of which she was to give evidence must be wrong (because the accused was in custody at the time she nominated in her statement). As a result, her evidence of dates was evasive and unconvincing. Further, she added significant detail (that she saw Mr Jenkin strike Mr Dower over money) that was most convenient to the prosecution case. She had never told anybody about this until two days before she was due to give evidence and then declined to make a statement about it. Her reasons for this are unclear. Her explanation for providing this evidence so late – that she happened to see a photograph of Mr Dower on a media website and this prompted a memory – was not believable. While her demeanour was quite convincing and Mr Jenkin’s denials of her evidence rather less so, I am not prepared to act on her evidence.

15. Paul Turner was present when Mr Dower moved from Mr Pike’s unit to that of Mr Jenkin. He was present inside the unit when a video was taken of Mr Dower in some distress. He did nothing to assist Mr Dower or obtain medical attention. He was taking heroin at the time. His evidence is potentially unreliable because he might reasonably be supposed to have been involved in the events giving rise to the proceedings and his memory may have been impacted by his drug use. [35]

16. I do not accept the submission that the evidence of Detective Sergeant Gregory Moon is evidence that falls into a category that the law recognises may be unreliable. He gave opinion evidence based on his expertise. Much of that evidence is not seriously in dispute – Mr Jenkin gave evidence explaining at least some of the blood stains Mr Moon identified and explained. Mr Moon made at least one significant error (identifying a defect in the paint work as a blood stain) and I have taken that into account in assessing his evidence overall. However, that error was patent and not the kind of matter that would attract an unreliability warning if the case was conducted before a jury.

17. Michael Riley was a prison informant who was plainly motivated to obtain a benefit from giving evidence of Mr Jenkin’s alleged admissions to him. He was provided with a letter of comfort to assist in his sentencing hearing. There are a number of bases upon which I must take into account that his evidence may be unreliable. [36] On the other hand, some of what he said was, ultimately, not in dispute and the timing of his revelations of his conversation with Mr Jenkin relative to what was publicly known at that time, suggest that his evidence may be reliable because the only possible source of the information he provided police (from his perspective) was Mr Jenkin himself. While I am guarded in my assessment of his evidence, I generally accept what he had to say.

    35. Evidence Act, s 165(1)(c) and (d).

    36. Evidence Act, s 165(1)(a) and (e).

Other prosecution witnesses whose evidence might attract an unreliability direction

52. Section 165 is predicated on an application being made for a direction. However, in addition to the witnesses nominated by Mr Lowe, there a number of other witnesses whose evidence falls into a recognised category of unreliability. I do not propose to detail all of those here but I will mention a couple.

53. Joyce Williams had lived for over 50 years in the Crana Place housing development. She was clearly giving honest evidence. However, she couldn’t hear very well at all. It was ironic then that a significant part of her evidence concerned what she had heard late at night, on the Crown case theory, from the flat of Mr Jenkin. Through no fault of Mrs Williams, there was a mild element of farce in parts of her evidence. For example: [37]

    37. T 452-453. I have italicised portions of this exchange where it was clear that the witness did not hear the question and attempted to answer a question she supposed she was being asked.

Q. Did you hear the other man who you knew from the Ex Servicemens' Club saying anything?

A. I heard him moaning.

Q. When did you hear him moaning?

A. At 1 o'clock in the morning. It woke me up.

Q. Can you recall approximately when that was?

A. No, I don't know what it was about, but I could hear him moaning.

Q. Could you hear any other sounds at around the time that you heard the moaning?

A. I could just hear him moaning, and I reckon I didn't know what was going on.

Q. Did you hear anything else other than moaning?

A. No I didn't hear nothing in the morning.

Q. Well what about at 1am?

A. No.

Q. What woke you up?

A. Somebody yelled. It woke me up out of my sleep.

Q. The yelling woke you up?

A. Yes.

Q. Where was the yelling coming from?

A. Yeah well I reckon it was upstairs coming from where I live.

Q. What unit's upstairs, what number?

A. 1 o'clock.

Q. No, what number was the unit upstairs?

A. I think it was 12.

Q. Who lived there?

A. I don't know what his name was.

Q. Was this the man you said was having conversations with the man from the Ex Servicemens' Club; is that right?

A. Yeah.

Q. Now on the night you said you were woken up with moaning, you said you also heard yelling?

A. Somebody yelling every now and again, yeah. For quite a long time.

Q. What did the moaning sound like to you, how did it sound, can you describe it?

A. Oh, dark headed guy.

Q. Right, that was the well, perhaps put it this way: Can you describe what the moaning sounded like?

A. A man he what?

Q. What did it sound like to you this moaning?

A. The dark headed guy?

Q. Right, was he moaning, was he?

A. (Witness nodded)

Q. What did you think when you heard that moaning?

A. Well I thought I wondered what it was. What's going on. But I didn't get up and ring the police. I should have.

Q. Do you recall the next day, or the following day observing something outside the units?

A. Pardon?

54. Mrs Williams’ evidence ought properly to attract a strong warning that it may be affected by her health (that is, her hearing difficulties). [38] It may be that she heard a man moaning in the morning, and that this has some relevance to the issues ventilated in this trial, but insofar as her evidence relies on what she heard in the middle of the night coming from another unit and her purported voice identification of the participants, I have disregarded it.

    38. Evidence Act, s 165(1)(c).

55. Three witness statements were tendered because the witnesses had died. These statements were from Kylie Strang, Ken Jenkin and Tracey Zonneveld. Each statement constitutes hearsay evidence and may be unreliable. The statements were not made on oath or in the presence of the accused. There was no way for the accused to test this evidence or to discover the circumstances in which the statements came to be made.

56. Other witnesses had drug and psychological difficulties or were involved in criminal activity of various kinds.

57. Where this kind of evidence is important to the resolution of any factual dispute between the parties, I have taken into account the kinds of warnings and directions that would be given to a jury. In every case, I have scrutinised the evidence with considerable care before making factual findings adverse to the accused.

The Crown’s application for unreliability warnings

58. The Crown Prosecutor identified two witnesses whose evidence may be unreliable and in relation to whom he invited me to exercise caution and take into account the warnings that a jury would receive.

59. The first was DP. He was called by the prosecution. He was a drug user, criminal and may have had some involvement in the plans to dispose of Mr Dower’s corpse. Putting aside any warning, it was obvious that he had no desire to assist the Court to arrive at the truth. I have taken into account the obvious deficiencies in his evidence in assessing the weight, if any, to be given to his testimony.

60. Jason Rees gave evidence of a conversation that Mr Turner had with Mr Jenkin in the presence of Mr Rees and a fourth man (Nathan Hall). Mr Rees’ evidence was that Mr Turner made a statement exonerating Mr Jenkin. He said (in effect) that Mr Turner told Mr Jenkin that he had nothing to worry about because neither of them assaulted Mr Dower. Mr Turner (under cross-examination) said he heard Mr Jenkin slap Mr Dower and saw Mr Dower’s reaction. Mr Turner was not cross-examined on this alleged conversation, Mr Jenkin gave no evidence of it, and Nathan Hall was not called to give evidence. If his evidence was favourable to the Crown, it would undoubtedly be subject to a warning under s 165(1)(a) and (e). There is authority that s 165 directions can apply to evidence unfavourable to the Crown, [39] and nothing in s 165 suggests that it is restricted to warnings calculated to ensure a fair trial to an accused person. However, in view of the onus of proof, such a warning would generally be tempered to ensure fairness to the person whose liberty is at stake.

    39. Cf R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455.

61. In the case of Mr Rees, the problems with his evidence were patent and I have concluded that there would have been good reasons for not providing a jury with any warning. He is obviously a man with some criminal history who said that he was “disappointed” in Mr Turner for giving evidence against Mr Jenkin. Presumably, the disappointment arose from a breach of the general attitude of criminals to resist giving evidence for the prosecution. (It seemed that he was not aware that the evidence in chief was extremely confined and almost all of Mr Turner’s evidence was elicited in cross-examination). His evidence as to how he came to know at least part of the substance of Mr Turner’s evidence was not believable. [40] First he said he had read it somewhere. When asked where he read it, he said another inmate may have told him. He said this other inmate’s name was “Muzza”. It is a fact that he had been held in the Wollongong cells with Mr Jenkin over the last week or so. I did not find Mr Rees to be a very creditworthy witness. I have taken his evidence into account in assessing Mr Turner’s version of events but I cannot give it very much weight.

    40. T 2002.

Conclusion on the witnesses

62. The quality of many of the lay witnesses was poor. There were some exceptions to this. It is necessary to scrutinise the evidence with considerable care. I have approached the evidence by looking to instances where the witnesses either support each other’s testimony (in the absence of any suggestion of, or opportunity for, collusion) and to look to other evidence capable of providing support for the oral testimony.

Tendency evidence

63. The Crown attempted to construct a case that Mr Jenkin had a number of relevant “tendencies” that made it more likely that he detained and assaulted Mr Dower. Four tendencies were identified in a tendency notice:

1. To act violently towards Mark Dower.

2. To stand over persons and intimidate them to pay him cash and to obtain sums of cash from these persons.

3. To detain persons and to intimidate and physically assault them.

4. To lock persons inside his unit if they came inside.

64. A good deal of the evidence in support of these alleged tendencies came from witnesses with significant credibility issues.

65. In relation to the first of the tendencies asserted (a tendency to act violently towards Mr Dower), the Crown Prosecutor indicated in the course of legal argument that it was more appropriately viewed as evidence relevant to the relationship between the men and the context in which events of March and April 2015 unfolded. I agree with this approach and counsel for the accused seemed to accept the evidence is relevant in that way. I will deal with it separately under the heading of relationship evidence, rather than under the umbrella of tendency evidence. I do not propose to use the evidence as tendency evidence although parts of it, if pressed, may have been admissible under ss 97 and 101 of the Evidence Act.

66. In relation to the second, third and fourth tendencies asserted in the tendency notice, a question arose as to the standard of proof to which those tendencies (or the evidence relied upon to establish them) must be proved. The Crown drew my attention to authorities suggesting the question remains a vexed one. [41] In Campbell v R, the Crown accepted that that “the evidence of the facts relied upon as tendency is to be proved beyond reasonable doubt.” [42] However, Simpson J (as she then was) said at [331] that she could see nothing in the Evidence Act that justified that approach. Her Honour tended to the view that tendency evidence was like any other kind of circumstantial evidence and the individual items of evidence did not require proof to the criminal standard. However, the issue was not fully argued and neither party drew my attention to any authority where the issue has been authoritatively determined.

    41. McPhillamy v R [2017] NSWCCA 130 and Campbell v R [2014] NSWCCA 175. See also, the High Court’s consideration of the issue at common law in HML v The Queen [2008] HCA 16; (2008) 235 CLR 334.

    42. Campbell v R [2014] NSWCCA 175 at [322].

67. In this trial, the Crown Prosecutor (very fairly) took the approach that before I acted on the tendency evidence, I should be satisfied of it beyond reasonable doubt. Naturally, counsel for Mr Jenkin did not gainsay this approach. While I share the misgivings of Simpson J (for much the same reasons expressed by her Honour in Campbell v R), I will adopt that cautious approach.

68. After the evidence had closed, the Crown identified the evidence of the following witnesses upon which it relied to establish the relevant tendencies: Jodie Pike (tendencies 2, 3 and 4), Dusan Vukadinovic (tendencies 2, 3 and 4), DD (tendencies 2 and 4), RS (tendency 4), Craig Maguire (tendencies 3 and 4) and Lisa Mara (tendency 3).

69. The evidence of these witnesses, or parts of it, was admitted as tendency evidence without objection. [43] That is, it seemed to be conceded that, if accepted, the evidence has significant probative value (s 97) and the probative value (in view of the issues in the trial) substantially outweighed any prejudicial effect it may have on the defendant (s 101). [44] I am not sure that I would have admitted all of this evidence had objection been taken. Even so, I will deal with the evidence as capable of supporting the tendencies advanced by the Crown.

    43. There was an attempt to flush out which evidence was objected to, and which was not, in advance of the trial but this attempt failed: T 26-35. Objections to the tendency evidence taken in the course of the trial were dealt with as they arose: R v Jenkin (No 8) [2018] NSWSC 704, R v Jenkin (No 10) [2018] NSWSC 705. No further objection was articulated in the course of legal argument at the end of the trial or in the course of the addresses.

    44. See IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14; Hughes v The Queen [2017] HCA 20; 92 ALJR 52.

70. However, acting on the Crown’s concession as to the standard of proof, I am not satisfied that the evidence establishes beyond reasonable doubt the tendencies numbered 2, 3 and 4.

71. As to Craig Maguire, I have no doubt he was doing his best to tell the truth. However, it would be unsafe to act on his evidence. His demeanour showed that he was a man with significant difficulties, no doubt as a result of his alcoholism (which is in remission). He gave evidence of being detained and assaulted in a unit at the Crana Place complex by a person he called “Red Doot”. There is no evidence that the accused was ever known by that nickname. Mr Maguire marked a photograph (1) in Exhibit B to indicate the flat in which he was detained. The flat he marked was not that of the accused. The Crown relies on the fact that it was in the same block (i.e. Block 4). While he provided a description that was generally consistent with the accused, and while he purported (under what was, with respect, ill-advised cross-examination) [45] to identify the accused in the dock, I am not satisfied that his evidence can establish beyond a reasonable doubt that it was the accused who assaulted him. I have taken into account the warning as to the dangers of identification evidence that would attend his evidence if given before a jury. I do not accept that there is any relevant distinction based on the Crown’s assertion that Mr Maguire purported to “recognise” rather than “identify” the accused. The extent to which he knew Mr Jenkin (or the man who assaulted him) is questionable in view of the fact that he did not even know his name. In any event, the incident he described did not involve an attempt to extort money from him. Rather, it involved “Red Doot” assaulting him because he kept repeating himself. While close similarity is not required for tendency evidence to have significant probative value, the safest course is to disregard this evidence.

    45. At the beginning of his evidence, an unsolicited attempt by the witness to identify the accused in the dock was disallowed (T 824-825). In the course of cross-examination, counsel for the accused put to the witness that the man who assaulted him “is not the man sitting behind me in the dock” and, almost inevitably, Mr Maguire said that it was (T 834-835).

72. As to Lisa Mara, I am not prepared to act on her evidence. I do not know whether she was doing her best to tell the truth. What I do know is that her original statement alleged that the accused assaulted her and Stuart Cowan, (and intended or attempted to detain her in a laundry), at a time when the accused was in actually custody. She said in her statement that the incident occurred “around her birthday” on 24 November 2014. This could not be true because the accused was incarcerated for some months either side of that date. This was a matter that was considered on the voir dire when objection was taken to her evidence. [46] When she came to give evidence in the trial, she was vague as to the dates. Listening and watching her give evidence, I formed the view that her vagueness was deliberate. The reason became clear under cross-examination. She said she had been told by one of the police investigators (not Detective Adams) that this “couldn’t have been the date” because the accused was “supposedly incarcerated.” The investigator in question gave a somewhat different version of events and it changed under force of the examination. He was not prepared to admit that he told Ms Mara that the accused was incarcerated at that time but, if he didn’t, it is a mystery as to how Ms Mara knew that. In any event, this “nobbling” of the witness meant that it was extremely difficult to assess her credibility.

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

73. I accept the Crown’s submission that this matter did not mean that Ms Mara was not otherwise telling the truth. It was submitted, and I accept, that I “should not throw the baby out with the bathwater”. However, I do not accept that the evidence in Ex KKK and Ex LLL provides any real corroboration of her evidence although they do clarify the dates and suggest her account of the visit to Dr Ali on 10 May 2014 is more accurate than that of Mr Jenkin.

74. A further matter of concern is the fact that her first statement made no mention of knowing Mr Dower or of any incident between Mr Dower and Mr Jenkin. A short time before she gave evidence, she told police that she had seen Mr Jenkin strike Mr Dower and that the argument was over money. For reasons that are unknown, she refused to make a statement about this. Her explanation for recalling this potentially important matter at such a late stage was improbable. She said she had, presumably recently, seen a photograph of Mr Dower in a news report.

75. Ms Mara freely acknowledged her drug addiction at the time and, judging from her appearance and demeanour, she has made great strides in overcoming that problem. If it were not for her deliberate imprecision regarding the dates, and based on her demeanour alone, I would have found her to be a reasonably convincing witness. However, for the reasons I have explained, I am unable to act on her evidence. While I prefer her account to that of the accused, the incident she described is certainly not established beyond reasonable doubt. I will disregard her evidence.

76. RS’s account of being detained by the accused arose on the night that Mr Dower died. That event, and her evidence on the issue, is so inherently connected with the narrative upon which the Crown relies, I think it is questionable whether it should also be used to support a tendency to detain or lock people inside the unit. There would be an element of circularity in the reasoning. In any event, RS went to Unit 13 voluntarily looking for AR and stayed there to take heroin supplied by the accused. Her evidence suggested that it was her perception, rather than the actuality, that she was being detained. She said she “heard keys rattling” and “thought” Mr Jenkin had locked the door. [47] She agreed in cross-examination that she did not know whether the door was locked or not. [48]

    47. T 479.

    48. T 520.

77. I will take RS’s evidence into account on the central issues in the trial but I will not use it in support of the Crown’s tendency case.

78. DD’s evidence concerned an argument over money and family relationships that took place in Mr Jenkin’s unit. It almost developed into a fair fight outside but the two men decided against the idea. While DD said that the door was locked, and that this was part of the reason for the argument, there was no real suggestion that DD was detained for any length of time. There was obvious personal animosity between the men. DD’s evidence, even if it was accepted, does not establish (beyond reasonable doubt) that Mr Jenkin had a tendency to stand over people for money or to lock people inside his unit.

79. The tendency evidence that is closest in character to what the Crown submits the accused did to Mr Dower came from Jodie Pike and Dusan Vukadinovic. Each gave evidence of being intimidated, assaulted and detained by Mr Jenkin. Each is a witness whose evidence may be unreliable for the reasons set out in paragraphs 51(1) and 51(3) above.

80. In the case of the allegations made by Jodie Pike, the accused acknowledges that an incident occurred around six month before Mr Dower’s death. However, the character of the incident he described is very different to that alleged by Mr Pike. In the case of Mr Vukadinovic, the allegations are flatly denied.

81. Mr Pike alleged that the accused came to his unit armed with a taser, a baton and a chain and insisted that Mr Pike accompany him back to Mr Jenkin’s unit. Mr Dower was present at the unit and Mr Jenkin questioned them about whether Mr Dower gave money to Mr Pike. Mr Pike’s evidence about the circumstances in which Mr Dower left his unit is an integral part of the prosecution case on count 1. For this reason, I am reluctant to use Mr Pike’s evidence of the earlier incident to support the tendency case. It is also the case that Mr Pike has a clear motive to bolster the case against Mr Jenkin because he has admitted to hitting Mr Dower at some stage.

82. Mr Vukadinovic gave evidence that Mr Jenkin assaulted him, detained him and sometimes took money from him through use of his keycard. There is some evidence that could potentially provide support for Mr Vukadinovic’s account. This includes that he left his unit in Block 4 Crana Place which was immediately upstairs from Mr Jenkin’s home. He also made a complaint to the police. However, he refused to sign his statement about the incident. There was also (hearsay) evidence from his partner, Ms Zonneveld that he had injuries and that things were “good” when Mr Jenkin was not staying in his unit. Against that, the relationship between Mr Vukadinovic and Ms Zonneveld was a volatile one. Asked whether the pair had regular arguments Mr Vukadinovic said “Yeah. We have sex. We fight. We do everything.” [49] The evidence showed that Ms Zonneveld had an animosity toward Mr Jenkin. Mr Vukadinovic was a heavy user of alcohol and there is a long history of serious psychotic illness. Taking all of this into account, I think I should approach this evidence with great caution.

    49. T 248.

A. That was, yeah that was the answer I gave that day, and later on I didn't mean slug him like punch around like a punching bag, he just give him a knock here, and a knock there, and tap here and push here, and shove here.

Q. And this was for a period what, of a week and a half?

A. It only happened once or twice.

172. T 1689.

269. Jodie Pike was asked if he had seen Mr Dower hit by anyone and he said that he saw a “couple of people hit him, but they slapped him that’s all”. He was asked who hit Mr Dower and he replied: [173]

Shane Young and Mark Spicer and me too, I slapped him a couple of times, because we used to muck around and punch each other and carry on and stuff. Mucking around.

173. T 134.

270. In cross-examination, he confirmed that Mr Dower often had scratches and bruises on him from falling around and (in my words) from his life as an itinerant alcoholic. It was put to him that he used to “slap Dower about, didn’t you?” and he replied “I slapped him a couple of times, only because he slapped me.” He agreed that he punched Mr Dower to the arm and leg but not to the body. He denied assaulting Mr Dower over an electricity bill. At this point the evidence is confusing (partially because there are three Marks in the case – Mark Spicer, Mark Jenkin and Mark Dower): [174]

     174. T 144-145.

Q. So you went to him I put to you to ask or get him to pay that bill?

A. No.

Q. And you assaulted him?

A. No.

Q. Because he didn’t want to pay that bill?

A. No.

Q. I put to you that what you did in terms of assaulting him you broke his nose and gave him a black eye?

A. I didn’t break his nose, I tapped him.

Q. But do you agree that you gave him a black eye then?

A. Yeah because Mark attacked me once, that’s all.

Q. We are talking about Dower, not Jenkin?

A. No.

Q. Do you understand we are talking about Mark Dower?

A. Yeah.

Q. Do you accept that you gave him a black eye?

A. I can't recall.

Q. And that as a result of what you did Dower, that is Mark Dower paid that electricity bill?

A. No, he stopped giving me money, he rarely ever give me money, just used to shout me cigarettes and wine.

271. Mr Pike’s evidence on this subject was inconsistent and difficult to understand. He was recalled once his criminal history was produced by the Commissioner of Police. [175] He initially said that he had no record for violence but was shown an entry on his criminal record that disclosed an offence of assault police in 1991. His response was: “I can’t remember back that far. It was years ago because I have been out of strife for over 20 years.” [176] In relation to the injuries Mr Dower had when he left Mr Pike’s unit, he gave the following evidence: [177]

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

     176. T 290.

     177. T 289-290.

Q. At this stage I am going to put this to you: Mark Dower (as said) got off the lounge slowly and he came towards Mr Dower and he came into the light. I put it to you Mr Dower had been bashed up?

A. Mm.

Q. Has right eye was black, the corner of his mouth on the same side was swollen, and he had lump on the top of his forehead. That is how I'm depicting to you or telling you his injuries?

A. Yeah.

Q. Do you recall those injuries on Mark Dower?

A. No.

Q. It could have happened?

A. Yeah.

Q. But you cannot remember?

A. No.

Q. Mr Dower said in your presence, "Who did this?" I'm putting to you what you said in response to this is, "I didn't touch him"?

A. I can't remember. It was so long ago. It's been three years since he's been dead.

Q. It could have happened?

A. It could have happened, yeah. Anything's possible. We were all on the drink.

272. Mark Spicer also gave evidence in relation to whether he had assaulted Mr Dower. In cross-examination, he denied punching Mr Dower and agreed that this would be “out of character”. He was asked if he had any convictions for assault and replied, rather memorably: “No, I’ve raised five children successfully.” [178] Mr Spicer’s criminal history was also disclosed late and he had to be recalled. It emerged he had two convictions for assault and that at least one of them involved beating one of the children to whom, presumably, his earlier answer related. Mr Spicer became very defensive when cross-examined about his criminal record but did not deviate from his denial of assaulting Mr Dower. However, like Messrs Pike and Bitton, his evidence must be scrutinised carefully because he is plainly an unreliable historian as a result of his chronic alcoholism. His denial of having a record for assault was plainly false.

     178. T 169.

273. Jodie Pike presented to the court as an ineffectual, small, thin man with a timid and docile disposition. I have little doubt that his personality is different outside the foreign environment of a court room and when he has consumed vast quantities of liquor. It is clear that Messrs Pike, Spicer and Dower spent a good deal of time drinking together and were, in this context, involved in physical altercations. However, there is no direct evidence that Mr Dower ever suffered any serious injury as a result of these skirmishes and the circumstantial case supporting that proposition is wafer thin. The only evidence that Mr Pike “stomped” on Mr Dower’s head comes from Mr Jenkin and is based on what he says he was told by Mr Bitton. Mr Bitton denies both saying that and ever seeing Mr Pike assault Mr Dower in a serious way.

274. I am satisfied beyond reasonable doubt that any assaults by Mr Pike were of a minor nature and that Mr Dower would not have died as a result of the injuries he had when he left Mr Pike’s residence.

Finding of unlawful assault(s) by the accused

275. Based on the whole of the evidence I am satisfied beyond reasonable doubt that at some time between 22 and 28 March 2015 Mark Jenkin unlawfully assaulted Mark Dower while Mr Dower was staying at Unit 13, 4 Crana Place Mangerton. The major items of evidence that leads me to that conclusion are:

• The nature of the relationship between the men. The evidence satisfies me that there was a recent history of violence and intimidation of Mr Dower by the accused. While some of the evidence came from witnesses whose evidence may have been unreliable, and while other parts involve circumstantial reasoning, based on the whole of the evidence, I am satisfied that Mr Jenkin had, in the weeks leading up to Mr Dower’s death, assaulted him and intimidated him and had taken money from him or accessed his keycard.

• The admissions I accept were made by Mr Jenkin to NB, SM and Mr Riley.

• The number of injuries and the absence of a number of those injuries when Mr Dower left the unit of Jodie Pike.

• The conduct of Mr Jenkin in failing to obtain medical treatment, hiding the body and discussing the possible execution of RS. I am satisfied the only reasonable explanation for his conduct is that Mr Jenkin was demonstrating a consciousness of guilt in relation to the death of Mr Dower. I do not accept that the discussion about disposing of RS can be explained by his involvement in some lesser offence such as interfering with a corpse.

• The aggressive and demeaning attitude demonstrated by Mr Jenkin in the video recorded on his mobile telephone.

276. I am unable to determine the exact number and nature of the assaults, or precisely when they occurred. I am satisfied that there were at least two such assaults based on the admissions made to NB and SM. Those admissions suggested two different precipitating events (or motives) for the assaults. One was that Mr Dower had made a mess when he lost control of his bladder and/or bowels. The other was that Mr Jenkin was angry because he was unable to use Mr Dower’s keycard. This suggests (at least) two separate assaults, likely some days apart.

Findings as to falls in Mr Jenkin’s unit

277. I reject (beyond reasonable doubt) Mr Jenkin’s evidence that Mr Dower fell face first to the floor in the presence of Mr Turner, AR and Ms Serisier. While I would be reluctant to act on the evidence of either Mr Turner or AR if standing on its own, the fact is that none of the three people said to be present gave any evidence of this incident. Ms Serisier was a friend of the accused and her evidence was believable. It is not reasonably possible that the incident described by Mr Jenkin occurred and that she forgot about it. There were a number of memorable details in the incident as described by the accused. I do not accept that Ms Serisier’s evidence that part of the version put to her “rang a bell” constituted a real or meaningful concession that the incident might possibly have occurred. In respect of all the details put to Ms Serisier, she said she could not recall such a thing happening and her final answer in cross-examination was “I don’t recall any of it”.

278. I accept the possibility that Mr Dower fell in the bath at some stage and possibly towards the end of his time with Mr Jenkin. However, based on the admissions made by Mr Jenkin to SM, I am satisfied that any such fall was associated with one of the assaults.

CPR

279. I reject Mr Jenkin’s account of performing CPR. Nothing in his conduct before or after death suggested any real concern for Mr Dower. His version of events in this regard lacked any ring of truth and appeared to be contrived to fit in with the medical evidence concerning rib and sternum fractures.

Moving the body

280. It may not strictly be necessary to determine the factual conflict as to when the body was moved. However, I accept RS’s evidence and reject the accused’s account. RS called Crime Stoppers soon after Mr Jenkin was taken into custody and correctly identified the location of the body. Mr Jenkin’s account of going back later and the details he provided, including saying a prayer after he dropped the body and apologising to the corpse, is not credible.

Causation

281. I am satisfied beyond reasonable doubt that the injuries occasioned in these assaults caused the death of Mr Dower, in the sense that they substantially contributed to his death. This finding is based on:

• A general acceptance of the evidence of Dr Szentmariay.

• The absence of any other medical explanation for his death and, in particular, that there was no natural cause leading to his death.

• Mr Dower’s ability on 22 March 2015 to walk from Mr Pike’s unit to Unit 13.

• The video taken on Mr Jenkin’s telephone suggesting he was not seriously injured when he arrived at Mr Jenkin’s unit.

• The evidence of Aleta Serisier, NB, Paul Turner, Jodie Pike and Dale Bitton as to their observations of the deceased in the period prior to his death.

murder

282. From the above findings, it will be seen that I am satisfied beyond a reasonable doubt that a deliberate act of the accused caused Mr Dower’s death.

283. The difficulty for the Crown is determining what that act was and, more importantly, whether the act causing death was accompanied by an intention to cause grievous bodily harm. The Crown does not contend that Mr Jenkin ever formed an intention to kill Mr Dower. The evidence would not allow for such a finding and an intention to kill is contrary to the motives attributed to Mr Jenkin, namely, to extort money from Mr Dower and to have Mr Dower provide support for his case that he did not come by the $1690 (subject of the goods in custody charge) illegally. The prosecution submits that the nature of the injuries gives rise to an inference that the accused assaulted Mr Dower with such force and severity that he must have formed an intention to inflict grievous bodily harm.

284. I accept that the Crown does not have “to identify a particular act which caused death where an accused has committed a series of acts, such as a long course of beating, where the fatal kick or blow cannot be identified.” [179] I also note that this is not a case like Lane v The Queen where there are two identifiable acts that may have caused death and the tribunal of fact must be satisfied (in the case of a jury, unanimously) of the particular act and the associated intention. [180]

     179. R v PL [2009] NSWCCA 256 at [48] citing R v Ryder [1995] 2 NZLR 271.

     180. Lane v The Queen [2018] HCA 28.

285. However, this is not a case of a continuous beating or, at least, I am not satisfied that it is. Rather, it is a case where one or more assaults occurred intermittently over several days. It is not sufficient for the Crown to establish that at some stage in that period the accused formed an intention to cause grievous bodily harm. The intention must co-exist with one or more of the acts causing death. It is possible (without making a finding beyond reasonable doubt) that when one or more of the assaults occurred, Mr Jenkin intended to inflict grievous bodily harm. However, the Crown must prove that the injuries occasioned in that assault (or those assaults) were a substantial contributor to death. By way of example, when the injury to the mouth occurred, it might be inferred that there was an intention to inflict grievous bodily harm. However, as serious as that injury was, it cannot be established that it caused or substantially contributed to death.

286. Because of the difficulties and complications in the medical evidence, I am not satisfied beyond reasonable doubt that Mr Jenkin had an intention to inflict grievous bodily harm at the time he committed the act or acts that caused Mr Dower’s death.

287. I accept that it is also open to the Crown to prove murder in this case by means of an omission (to obtain medical treatment) coupled with a reckless indifference to human life. [181] I accept Dr Szentmariay’s evidence that the failure to seek medical assistance was a significant contributing factor to death. However, to prove murder in this way, the Crown must establish that the accused foresaw the probability of death. [182] The High Court has said that the reason reckless indifference in murder requires foresight of the probability of death (as opposed to the possibility which is the case in other forms of recklessness) is that the mens rea for murder based on recklessness must possess a “near moral equivalence of intention to kill or cause grievous bodily harm.” [183] Further, the realisation that death was a probable consequence of a failure to obtain medical treatment must exist at a time when medical treatment might have prevented Mr Dower’s death.

     181. R v Lawford (1993) 61 SASR 542 and R v Styman; R v Taber [2004] NSWCCA 245.

     182. The Queen v Crabbe (1985) 156 CLR 464; [1985] HCA 22 at [468-469].

     183. Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18 at [329].

288. Again, because of the complications surrounding the medical evidence, it is impossible to establish beyond reasonable doubt the point at which Mr Jenkin would have realised that Mr Dower would probably die (assuming that he ever realised that).

289. I am not satisfied beyond reasonable doubt that the Crown has established murder by an omission accompanied by a reckless indifference to human life.

290. It may be that Mr Jenkin did the act causing death with an intention of inflicting grievous bodily harm and that he is guilty of murder. However, as I said at the outset, the standard of proof is extremely high and Mr Jenkin must be given the benefit of any reasonable doubt. In this case, in spite of my suspicion that he is guilty of murder, I have a reasonable doubt as to his state of mind at relevant times and whether he either intended to inflict grievous bodily harm or realised that Mr Dower would probably die if he did not receive medical attention.

291. For those reasons, I find Mr Jenkin not guilty of murder.

manslaughter

292. The Crown seeks to prove the alternative charge of manslaughter in two ways. I am satisfied beyond reasonable doubt that it has done so.

293. In particular, I am satisfied beyond reasonable doubt that:

1. The accused did a voluntary act or acts, namely assaulted Mr Dower on one or more occasions between 22 and 29 March 2015.

2. The injuries sustained in this assault, or these assaults, caused Mr Dower’s death in the sense that they were a substantial cause of his death.

3. The act was, or acts were, unlawful acts. There is no suggestion of self-defence or any other matter that would render lawful the application of force to Mr Dower.

4. The act or acts carried with them an appreciable risk of serious injury.

294. Further, I am satisfied beyond reasonable doubt that:

1. Having assaulted him and seen his injuries, Mr Jenkin owed Mr Dower a legal duty of care.

2. The failure to seek medical assistance constituted a breach of that duty of care.

3. The failure to seek medical treatment was a significant contributing factor to Mr Dower’s death.

4. The extent of the departure of the standard of care to be expected was so gross that it warrants criminal punishment.

295. For those reasons, I find Mr Jenkin guilty of manslaughter.

conspiracy to murder

296. I am satisfied beyond reasonable doubt that Mr Jenkin and his stepbrother Mr Stuart Cowan reached an unlawful agreement to kill RS. There is no other reasonable interpretation of the conversation of 25 August 2015.

297. There was a clear discussion that RS might die from a heroin overdose and that this, in a heroin addict, might be seen as “shit happening” or a “misadventure”. There was a direction from Mr Jenkin that Mr Cowan “hot shot this cunt” so that “she’s really not breathing when she fuckin' leaves.”

298. I reject (beyond reasonable doubt) the suggestion in Mr Jenkin’s evidence that the reference to her “leaving” demonstrates that there was no intention that she be killed. Such an interpretation cannot stand with the words “not breathing”.

299. I also reject beyond reasonable doubt the suggestion in counsel’s address that Mr Jenkin “countermanded” the agreement to kill RS when he said “we’ll come and do it” and “we’ll fuckin’ sort this cunt out.” To withdraw from a conspiracy requires an unambiguous repudiation of the agreement. [184] There is no evidence capable of raising a reasonable doubt that Mr Jenkin withdrew from this agreement. He spoke with Mr Cowan twice again on the evening of 25 August 2015 (or shortly after midnight) and in neither of those conversations is there any suggestion that he had called off the agreement.

     184. McEwan v The Queen [2013] VSCA 329; White v Ridley (1978) 140 CLR 342; [1978] HCA 38;

300. I am satisfied that Mr Jenkin attempted to assist Mr Cowan to find a source for the heroin and that Mr Cowan approached DFin an attempt to purchase the heroin. I am also satisfied that Mr Cowan attempted to locate RS. This conduct constitutes the kind of overt act that proves the existence of the unlawful agreement and the intention of the parties that the unlawful purpose of the agreement would be completed.

301. I am satisfied at the time he entered the agreement that Mr Jenkin intended that the unlawful purpose of the conspiracy (to murder RS) would be carried out.

302. For those reasons, Mr Jenkin is guilty of the conspiracy to murder RS.

verdicts

303. Accordingly, I return the following verdicts:

1. In respect of count 1:

1. Not guilty of murder.

2. Guilty of manslaughter.

2. In respect of count 2:

1. guilty of conspiracy to murder.

304. Upon those verdicts the accused is convicted of manslaughter and conspiracy to murder.

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Endnotes

R v Tietie (1988) 34 A Crim R 438.

Decision last updated: 27 June 2018