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 52Category: Procedural and other rulings Parties: Regina
Mark Kenneth JenkinRepresentation: Counsel:
Solicitors:
Mr M Fox (Crown)
Mr P Lowe (Jenkin)
Director of Public Prosecutions (Crown)
O’Brien Solicitors (Jenkin)
File Number(s): 2015/00345562 Publication restriction: No
Judgment
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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.
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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.
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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).
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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…
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- AGLC
- R v Jenkin (No 8) [2018] NSWSC 704
- Case
- [2018] NSWSC 704
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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