R v Jenkin (No 4) [2018] NSWSC 676

Supreme Court New South Wales

Medium Neutral Citation: R v Jenkin (No 4) [2018] NSWSC 676 Hearing dates: 07 May 2018 Decision date: 07 May 2018 Jurisdiction: Common Law Before: Hamill J Decision: The evidence in paragraph 10 of Exhibit F is admissible. Catchwords: CRIMINAL LAW – belated objection to part of a statement admitted without objection – where part of statement suggests the accused dealt in drugs – where accused put to a previous witness that the witness purchased drugs from the accused – inexplicable glitch – where evidence has potential to establish connection between accused and other relevant players in the narrative – where Crown eschews use of evidence to establish bad character – trial by Judge alone – evidence capable of being used in a limited way Category: Procedural and other rulings 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: No

EX TEMPORE Judgment (revised) 1. The accused raises objection to part of paragraph 10 of the statement of the current witness, Matthew Beretov. That paragraph sets out a number of communications between the accused and another person in the following terms: I spoke to the custody manager who informed me that the accused had been read and explained his rights whilst in Police custody. I had a brief conversation with the accused and searched his wallet, not locating any receipts." I said - "Mark I haven't located any receipts in your wallet. I have noticed some messages on the screen of your phone that I believe may relate to the purchase or sale of prohibited drugs." The accused said - "Check my phone chief, I don't send messages from my phone." I accessed the phone of the accused and located a number of messages. Te messages stated; 1 - "Hey broz call u ASAP broz we give u one of my person broz??call me an arrange a meet Ya while walking my dogs!!!pauly" 2 - "Yo broz give us a call!!!!!!could do with the extra!!!!$$pauly" 3 - "Hey Broz we r waiting!!can u help out?? becareful filth got 6 people leaving here yesterday!!jus call us ok ??? pauly" 4 - "Black silver n white 4wds stalking" 5 - "U still need a some coffee mate??paul" 6 - "It's desi i'll sell u one of mine but you have to come now please. Desi" I said - "Mark I would like to interview you in relation to the offences I have spoken to you about earlier." The accused said - "Ok chief I'll do an interview." I comm[en]ced preparations for the interview, however the accused indicated he wanted to speak to me again. The accused said - "Chief I want to call a lawyer first." I obtained a phone book for the accused and handed it to him. The accused appeared t commence looking through the phone book before speaking to me again. The accused said - "Chief I don't know my lawyers number, I'll just deal with this in court. I don't want to do the interview now." I said - "That's ok Mark." The accused said - "But chief, you can't take that money, I got it today." I said - "Mark you've told me you're unemployed and that you were only released from prison recently. How did you get that money?" The accused said - "Chief that bloke that was with me when you spoke to me today gave me the money." I said - "Mark you have just told me you just met that bloke and he was new to the apartment and thats why you were showing him how to use the washing machine." The accused said - "No the other two blokes that were there." I said - "Mark there was nobody else there. I spoke to the other male and he stated he has only just met you and you were showing him how to use the washing machine. He was also searched and we only located a lighter and a pouch of tobacco." The accused said - "Chief check my wallet, there's receipts there." I said - "We have searched your wallet in front of you and they're not there." The accused said - "Well actually what I did was me and my mate went to a ATM and withdrew $2000, some was for me and some was for the other bloke." I said - "Ok whats the blokes name so I can verify what you are saying?" The accused said - "I don't know his name, jono or something." I said - "Mark how do you expect me to believe that a bloke has given you nearly $2000 when you don't even know his name?" The accused said - "It's ok chief, I'll get the footage from the ATM when we took the money out." I said - "Ok mark what about the cannabis we located?" The accused said - "It's mine chief, I just have it for personal use for my anxiety." I said - "What about the white powder?" The accused said - "I have no idea chief, it's not mine." 1. Initially, the statement of the witness was tendered and marked as Exhibit F. No objection was taken. Accordingly, the part of the statement to which objection is now taken is already in evidence. However, in spite of that inexplicable glitch, I accept that it is appropriate, the matter now having been raised, to rule on the admissibility of the statement. 2. The evidence on its face may tend to suggest that the accused was involved in some form of drug dealing. That obviously has the potential to have a prejudicial impact. However, the Crown says it will not seek in any way to rely on the evidence in that respect. In any event, part of the accused's case, as it was put directly to a previous witness, is that the previous witness had purchased drugs from the accused. That is important in assessing any unfair prejudice arising from the evidence the Crown now seeks to elicit. 3. The Crown says the evidence has relevance because there are references to a person "Pauly" in three of the messages and to "Paul" in a fourth message. 4. The Crown case will be that this, along with other evidence, will establish some connection between Mr Jenkin and the co-accused or alleged co-offender, Mr Paul Turner. 5. There is also reference in the sixth message to a person "Desi". It will be the Crown case that someone who goes by that nickname was the person ultimately approached by the other alleged co-offender, Mr Cowan, to purchase heroin for the purpose of killing one of the witnesses in the case. That is the subject of the second and third counts - solicit to murder and conspiracy to murder. 6. The evidence is objected to on the basis of relevance. I am satisfied on the basis of the Crown's submission that the evidence is relevant to establish connections between the present accused and the other men. I am satisfied, given the contest between the parties, that there is some probative value to the evidence to be used in that way. 7. I accept Mr Lowe's submission that the evidence does have a potential for prejudice but in view of: (1) the fact that the Crown will not seek to rely on the material as establishing any bad character by way of the accused being a drug dealer; (2) that the accused himself has put to a witness that he purchased drugs from the accused; and (3) that the trial is being conducted by way of a Judge alone wherein I can use the evidence in a particular way and not in a prejudicial way, I am satisfied that the evidence is admissible and that the probative value outweighs its potential to do prejudice. 8. Accordingly, Exhibit F will remain in its current form, notwithstanding the belated objection to part of paragraph 10, and the witness can continue to read his statement.