R v Jenkins [2016] NSWSC 414

Supreme Court New South Wales

Medium Neutral Citation: R v Jenkins [2016] NSWSC 414 Hearing dates: 8 April 2016 Date of orders: 08 April 2016 Decision date: 08 April 2016 Jurisdiction: Common Law Before: Campbell J Decision: The trial of the matter of R v Brandon Jenkins is vacated. List the matter in the Arraignment's List before Johnson J on 6 May 2016. Catchwords: CRIMINAL LAW – practice and procedure – adjournment - trial vacation – late service by defence of expert reports raising substantial impairment Legislation Cited: Criminal Procedure Act 1986 (NSW) Criminal Procedure Act 1986 (NSW) Criminal Procedure Regulation 2010 (NSW) Category: Procedural and other rulings Parties: Brandon Jenkins (Accused) Regina (Crown) Representation: Counsel: R Herps (Crown) P Green (solicitor) (Accused) Solicitors: Department of Public Prosecutions NSW (Crown) Jeffreys Lawyers (Accused) File Number(s): 2013/284135

1. Mr Jenkins is accused of murder. The events which have given rise to the matter occurred on 18 September 2013 at Doonside when he is said to have murdered Cheyne Stuart Duncan by stabbing him. 2. Mr Jenkins has entered a plea of not guilty and on 6 November 2015 the Criminal List Judge, Johnson J set the matter down for a trial to commence on 4 April 2016 with a three-week estimate. 3. The matter was initially allocated to Mathews AJ but at a directions hearing conducted by her Honour on 18 March 2016, it was indicated that Mr Scragg of learned counsel who is briefed, and has been briefed for some time, on behalf of Mr Jenkins, would be unable to appear this week because of prior important professional commitments. 4. At the same time it was indicated to her Honour that the issues that had emerged were such that the estimate may be more like four to five weeks than three and in those circumstances her Honour indicated that she was not available to conduct the trial. 5. The matter was reallocated to me and came before me on 23 March for a directions hearing. At that stage I learnt that the defence had yet to provide its disclosure notice under s 143 of the Criminal Procedure Act 1986 (NSW) and that the real issues for determination by the jury therefore were still attended by a degree of uncertainty. 6. The significance of that was that until the Crown knew, as it in modern practice is entitled to know, how much of its notified case was in dispute and whether any positive defences were likely to be raised, it was unable to finalise the brief of evidence for the trial. 7. Having regard to the Easter period intervening I directed that the notice under s 143 be provided no later than 30 March 2016. When the notice was provided a number of things became apparent. 8. For reasons that Mr Green has explained relating to, I use his expression neutrally, Mr Jenkins' mental state, the circumstances leading to the stabbing of the deceased are in issue. The notice also said "the accused concedes there is evidence available to the Crown if accepted by a jury is capable of establishing the accused stabbed the deceased which caused the death of the deceased". I understand that not to be a denial of the actus reus but rather a statement which puts the Crown to proof of an essential element of the offence. 9. However, importantly the notice stated in para 1(b) that self-defence, mental illness and substantial impairment were issues, and in para 1(g) that substantial impairment was relied upon. By Pt 2 of the notice, the accused served a total of five experts reports from three experts: a psychiatrist, a neuropsychologist and a toxicologist/pharmacologist. Those reports range over the period 8 May 2015 to 27 March 2016 (Easter Sunday). 10. When the matter came before me to confirm its readiness to proceed on Monday 4 April 2016, the Crown, I must say with great fairness, indicated that these reports had been received and that they gave rise to a serious triable issue about whether Mr Jenkins was entitled to rely upon the partial defence of substantial impairment in the alternative to the defence already telegraphed of self-defence or defence of another. I was informed by the learned Crown Prosecutor, Mr Herps, that inquiries at that time indicated that the Crown could not put itself in a position to deal with this evidence for some weeks. 11. I should point out the following circumstances. Under Criminal Procedure Regulation 2010 (NSW) cl 20, the defence is required to give notice of reliance on the defence of substantial impairment no later than 35 days before the commencement of the trial. In this case that would have meant that the notice should have been given no later than at the last week of February 2016. 12. Moreover, when the matter was before the Arraignments Judge in September Mr Green, solicitor who represents Mr Jenkins, informed Johnson J that a report had been obtained from Dr Allnutt, being his first report of 8 May 2015, and that further inquiries were being made in relation to the availability of the defence of substantial impairment. 13. For that reason his Honour adjourned the arraignment hearing to 6 November. On that occasion Johnson J raised the question again directly with Mr Green and Mr Green replied that at that stage substantial impairment was not to be relied upon. Now I appreciate the nuanced qualification but I must say, as I have said to Mr Green in the course of the hearing today, that I would have thought that if, as clearly was the case, investigations in relation to that issue were continuing, that should be made clear to his Honour and a further adjournment sought until those inquiries had been completed and the defence were in a position to make a decision about whether to raise those circumstances as an alternative partial defence to the most serious charge that Mr Jenkins is facing. 14. There are a number of reasons why that was necessary. The first and foremost is the lawyer's duty of complete candour. The second is that the interests of the administration of justice require that trials be ready to proceed when they are set down. Murder trials in the Supreme Court of New South Wales typically take weeks or even months. Once hearing time is allocated to a particular trial it is impossible to call on another trial to replace it if there is to be an adjournment. 15. Now I acknowledge that not infrequently there may be a change of plea and a person who has pleaded not guilty will then plead guilty to the charge and the trial becomes unnecessary. However, in circumstances like this where it has become necessary for the Crown to apply for an adjournment of the trial, the net effect is four to five weeks which the court had available for the conduct of a murder trial is simply wasted. The secondary effect is of course that Mr Jenkins, who is held in custody on remand awaiting his trial, is deprived the opportunity of standing trial at this time. 16. It seems to me that the result of an adjournment will be that a trial date is unlikely to be available in the Common Law Division until at the very earliest late this year or perhaps the first half of next year and that delay is to be greatly deprecated. 17. I return then to the merits of the Crown's application. In the circumstances the defence do not object, and indeed consent, to the adjournment. This is a proper attitude for the defence to adopt. 18. When the matter was before me on Monday the Crown informed me that inquiries made at that stage indicated that it was likely to be some weeks before the Crown could put itself in a position to meet the new material served out of time by the defence. 19. Anxious as I was to do all that could be done to preserve the hearing dates, even if that meant pushing the commencement date back somewhat, I asked that inquiries be made this week to see how quickly expert witnesses could be qualified to meet the material served by the defence. 20. In support of the application for an adjournment Mr Herps has read the affidavit of his instructing solicitor Ms Britten sworn on 7 April 2016. From it I am satisfied that she has made diligent inquiries to attempt to secure the assistance of relevantly qualified experts to meet this new case. 21. I had hoped, I suppose by way of hope over experience, that perhaps arrangements could be made that would enable the new issues to be met during the running of the lay evidence in the trial but of course the Crown must have the opportunity to investigate these matters for a number of reasons. One, of course, is to determine whether it agrees that Mr Jenkins has available to him the partial defence of substantial impairment. It must also be put in a position where it can meet and test the evidence likely to be led in the defence case. That is to say, learned counsel needs to have the benefit of independent experts qualified by his own instructing solicitor to equip him to test and cross-examine the evidence of the defence experts, always bearing in mind the defence carries the onus of proof on this issue on the balance of probabilities and that the prosecution is entitled to call its evidence relevant to the issue in reply. 22. From Ms Britten's affidavit I accept that it is likely to be six to eight weeks before the process of gathering relevant expert evidence is complete. I also accept that, given the issue, the number of lay witnesses who have to be called will necessarily increase. 23. It is obvious from my reading of the reports that have been served by the defence that there are at least two competing versions of primary fact relevant to the expressions of opinion by experts in this area and testimony of lay witnesses who saw the accused on 18 September 2013 before, during and in the aftermath of the events that led to the death of Mr Duncan, will be very material. 24. Given the length of time that it will reasonably take the Crown to put itself in a position to meet this new issue and given the necessary extension of the estimate previously given, I have no option other than to accede in the interests of justice to the application made by the Crown today. 25. Accordingly, I make the following orders: 1. The trial of the matter of R v Brandon Jenkins is vacated. 2. List the matter in the Arraignment's List before Johnson J on 6 May 2016.