R v Jenkin (No 8) - [2018] NSWSC 704

Supreme Court

New South Wales

Medium Neutral Citation: R v Jenkin (No 8) [2018] NSWSC 704
Hearing dates: 15 May 2018
Decision date: 15 May 2018
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
The proposed tendency evidence of JG is not admissible.

Catchwords: CRIMINAL LAW – evidence – tendency evidence – whether evidence has significant probative value – where accused charged with murder – allegation that deceased detained against his will – tendency asserted in notice “to detain persons and to intimidate and physically assault them” – where proposed tendency evidence does not establish detention of witness – eccentrically articulated tendencies – evidence establishes no more than a tendency towards violence – complex interpersonal relationships – consideration of issues in the trial
Legislation Cited: Evidence Act 1995 (NSW) ss 55, 97, 101 and 165
Cases Cited: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Hughes v The Queen [2017] HCA 20; 92 ALJR 52
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

On 15 May 2018, the twelfth day of this Judge alone trial (the first two of which were occupied by pre-trial issues), the Crown sought to lead evidence from the witness JG of an incident she said occurred between her and the accused Mark Jenkin in late March or (more likely) early April 2015. The Crown sought to rely on the evidence as tendency evidence. Notices had been served and there was some discussion about the matter during the pre-trial skirmishes. However, the issue of the tendency evidence, of which there is a significant volume, was not finally resolved. Each of the parties made some concessions in the course of the pre-trial hearing and it was determined that the matter should be considered witness by witness as the evidence was adduced in the trial proper.
In the course of JG’s evidence (Transcript (“T”) 732-742), Mr Lowe (counsel for Mr Jenkin) raised an objection to part of the evidence (T 734). I received the statement on the voir dire and called on submissions from the learned Crown Prosecutor. I ruled that the evidence was not admissible as tendency evidence and indicated that I would provide reasons later. These are those reasons.
The Crown has relied on an amended tendency notice on the pre-trial hearing (Ex VD-B). A document styled “REVISED TENDENCY EVIDENCE RELIED UPON” was provided in the course of the pre-trial argument (MFI-VD12). In each document, the Crown indicated an intention to tender (as tendency evidence) paragraphs 12, 13 and 14 of JG’s police statement dated 19 May 2015 (Ex VD-F).
The tendency notice identified in paragraph 2 the following four “tendencies” that the Crown seeks to establish against the accused:

To act violently towards Mark Dower [who is the deceased in relation to whom the accused is charged with murder].

To stand…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Jenkin (No 8)

Details

AGLC: R v Jenkin (No 8) [2018] NSWSC 704
Case: [2018] NSWSC 704
Decision Date: 15 May 2018

CaseChat Overview and Summary

The case of R v Jenkin (No 8) involved the Crown prosecuting the accused on a charge of murder. The dispute centred around the admissibility of certain evidence the Crown sought to introduce, which was argued to be relevant tendency evidence. The case was heard in the Supreme Court of Victoria. The accused faced serious allegations, including the detention of the deceased against his will. The Crown's proposed tendency evidence related to the accused's asserted pattern of behaviour, namely to detain persons and to intimidate and physically assault them. The trial judge had to determine whether this evidence had significant probative value and whether it was relevant to the charge of murder.

The legal issues before the court involved assessing whether the proposed tendency evidence was admissible under the common law rules for admitting such evidence. The court had to consider if the evidence established a tendency towards committing acts of violence or detention, and whether it was relevant to the charge of murder. The court also had to weigh the probative value of the evidence against any potential prejudice it might cause. The eccentric articulation of the tendencies and the complex interpersonal relationships involved added layers of complexity to the court's analysis.

The Supreme Court found that the evidence did not establish the accused's tendency to detain persons, as it only demonstrated a tendency towards violence. The court determined that the evidence had limited probative value in relation to the charge of murder and was more likely to cause prejudice than to assist the jury in making a decision. Consequently, the trial judge excluded the proposed tendency evidence from being presented to the jury. The court's decision was based on a careful consideration of the evidence's relevance, probative value, and potential for prejudice.

No specific final orders were made in relation to the evidence issue alone, but the exclusion of the contested evidence impacted the overall case. The jury ultimately needed to decide on the murder charge based on the remaining admissible evidence.

Orders