R v Jenkin (No 9)

[2018] NSWSC 743

Supreme Court

New South Wales

Medium Neutral Citation:	R v Jenkin (No 9) [2018] NSWSC 743
Hearing dates:	16 May 2018
Decision date:	16 May 2018
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	The evidence of the listening device recording is admissible.
Catchwords:	CRIMINAL LAW – evidence – whether relevant – evidence of recorded conversation between witness and co-conspirator – where evidence establishes connection between those people – where Crown case is that co-conspirator attempted to obtain heroin from witness as part of conspiracy to murder another witness – discussion of other drug deals – whether prejudicial – Judge alone trial – evidence admissible on issue of relationship between witness and co-conspirator
Legislation Cited:	Evidence Act 1995 (NSW), ss 55, 87, 137
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 NSW (Crown) O’Brien Solicitors (Jenkin)
File Number(s):	2015/00345562
Publication restriction:	No

Ex tempore Judgment (revised)

1. The Crown seeks to tender a recording and associated transcript of a conversation involving the present witness, Ms Desyl Freimann, her partner Mr Paul Lincoln, Mr Stuart Cowan, as well as a person called Kylie Smith; I think the last person I mentioned is essentially irrelevant.

2. Mr Cowan, is a co-accused in respect of count 2 alleged against Mr Jenkin, but his trial has been separated and he is to go to trial in the District Court at some later stage. That second count alleges conspiracy to murder, and the Crown case is that Mr Jenkin made a telephone call, or calls, to Mr Cowan (which were intercepted and recorded) in which he gave certain instructions to him, or asked him to arrange the murder of one of the people who may have potentially been a witness against Mr Jenkin in respect of the charge which is now count 1 on the indictment, which is to say, the murder of Mark Dower.

3. The listening device recording in question involves a somewhat discursive conversation between the various participants, and it includes some discussion at least between Mr Cowan and the group, including the current witness, of the possibility of accessing something described as “bupe strips”, which I am told, and for the purpose of this argument accept, is a medication used to assist people with opiate addiction. The conversation goes on with Mr Cowan offering to “pay cash for ice, pot, or whatever people want”.

4. There is some suggestion, although I can't initially see it myself, that the first part of that conversation concerns an attempt, or intention on Mr Cowan’s part to provide drugs to Mr Jenkin, who was then in custody. Certainly the reference to “bupe strips” follows shortly upon him saying that he intended to visit him, that is “Jenk”, the following weekend.

5. There is a question mark as to the relevance of the evidence that Mr Cowan attempted to, or did, provide Mr Jenkin with drugs while he's in gaol, and that is a matter that may need to be fleshed out and argued at a later stage.

6. For present purposes, the Crown relies on the conversation for one singular purpose, and that is to establish a connection between the current witness and Mr Cowan, and in particular a connection that involved the present witness supplying Mr Cowan with drugs, or at least Mr Cowan approaching her to supply drugs.

7. Objection was taken before the witness gave evidence and I heard argument, and the witness has now given at least most of her evidence-in-chief. The basis of the objection was initially pursuant to s 87 of the Evidence Act 1995 (NSW), what used to be called the co-conspirator’s rule, and is now concerned with admissions made with authority. The Crown does not attempt to tender the evidence on the basis that there is any admission made on Mr Jenkin's behalf by Mr Cowan, and the evidence could not be used in that way if admitted.

8. The second basis of the objection was that the evidence was not relevant. The third, and closely related part of the objection, was that the evidence should be excluded under s 137 of the Evidence Act, which is to say that the probative value is outweighed by the danger of unfair prejudice.

9. Mr Lowe, on behalf of Mr Jenkin, makes it clear that his client (and therefore he) is not in any position one way or the other to challenge any evidence the Crown may have creating a connection between Ms Freimann and Mr Cowan. Simply put, Mr Jenkin does not know what connection they had and whether Mr Cowan purchased drugs from Ms Freimann.

10. Similarly, at this stage I do not know what the defence case is in relation to the charge of conspiracy to murder, being count 2, or solicit to murder which is an alternative in count 3. I have been told that there are recordings of conversations between Mr Jenkin and Mr Cowan, but I am yet to hear them and I don't know their precise content. More importantly, I don't know exactly what case it is that Mr Jenkin will be running in respect of those counts.

11. The definition of relevance is provided in s 55 of the Evidence Act and it is that “evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of the fact in issue in the proceeding.”

12. Section 55(2) then sets out things that, of themselves, do not mean that evidence is irrelevant but I need not concern myself with those matters.

13. The Crown will attempt to establish that, following the conversations that it alleges occurred between Mr Jenkin and Mr Cowan, Mr Cowan took steps to execute the plan subject of the conspiracy charge by attempting to obtain drugs with which to give another witness in the case, what is described, I am told, as a “hot shot”. There will be evidence that a hot shot refers to a dose of heroin that might kill her.

14. The Crown hopes to establish that Mr Cowan approached the present witness with a view to obtaining the drugs to be used in the hot shot. The relationship, therefore, between Mr Cowan and Ms Freimann is relevant, as is the nature of their interactions; that is to say, purchasing or supplying drugs, albeit that it seems that the drugs that had been supplied up to that point were not heroin.

15. Accordingly, it is clear that evidence showing them conversing about drugs could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue; namely, whether Mr Cowan took steps to obtain heroin for the purpose of killing a witness by means of a hot shot. The evidence is relevant.

16. The evidence then has to be assessed in terms of the extent to which it could rationally affect a fact in issue, which is to say its probative value. Mr Lowe submits that the evidence is “tenuous” and is not of great probative value and that there is a danger of unfair prejudice, and that the probative value is outweighed by that danger.

17. The trial has involved a large amount of evidence given by witnesses that are clearly involved in the drug milieu. There has been evidence adduced through cross-examination that Mr Jenkin supplied drugs on one occasion. There is other evidence, beyond the charges themselves, of conduct of Mr Jenkin that may be considered by some to be disgraceful conduct. At least some of that evidence has been admitted without objection. Other evidence of that kind has been excluded, but the amount of evidence that is before the Court on peripheral issues with the potential to do prejudice is of some significance. I take it that part of the reason that the parties agreed to a Judge alone trial was that at least some evidence that might potentially be unfairly prejudicial, if admitted before a jury, would not have that prejudicial effect before a Judge. That is because a Judge is capable of using the evidence in a particular way without being affected by the prejudice that might be inherent in that sort of evidence and can use the evidence for the particular purpose for which it is tendered.

18. Because it is not known precisely what case it is that the defence proposes to run in relation to the conspiracy charge, and in relation to the connections between various players, the Crown is, at least at first blush, entitled to prove its case and to prove a relationship or connection between Ms Freimann and Mr Cowan in order to support its case that Mr Cowan approached her to obtain heroin.

19. The potential for prejudice in the present circumstances is, in my assessment, very slight and I think the probative value of the evidence in fact outweighs the danger of unfair prejudice rather than the converse: cf s 137 Evidence Act.

20. At this stage, I can indicate that I would only be admitting this evidence on the singular basis, that it establishes some connection and the nature of the relationship between Ms Freimann and Mr Cowan. Until I have heard further evidence, I have not formed any view as to whether the evidence might also be admissible to support another aspect of the Crown's argument which is that it goes to the relationship between Mr Jenkin and Mr Cowan, in that Mr Cowan took direction from, and obeyed the directions of, Mr Jenkin. I need to hear further submissions in relation to that issue, if and when it arises. Insofar as an inference could be drawn from the material on page 5 that Mr Cowan was attempting to obtain drugs, namely “bupe strips”, to take to Mr Jenkin in gaol, I am not disposed to use the evidence in that way at all and, at this stage, I am not satisfied that it is relevant in that way.

21. In terms of the evidence establishing a connection between Ms Freimann and Mr Cowan, I am of the view that it is relevant and that its probative value outweighs the danger of unfair prejudice and I propose to admit the evidence.

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Decision last updated: 23 May 2018