R v Jenkin (No 11) [2018] NSWSC 790

Supreme Court New South Wales

Medium Neutral Citation: R v Jenkin (No 11) [2018] NSWSC 790 Hearing dates: 18 May 2018 Date of orders: 18 May 2018 Decision date: 18 May 2018 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Evidence of alleged assault on deceased by the accused is admissible. Catchwords: CRIMINAL LAW – evidence – thrills of being a criminal advocate – surprises – where witness gives evidence not included in witness statement – whether unfair prejudice – where experienced counsel has significant material to impeach credibility of witness – where alternative remedies available to cure any unfairness – assessment of probative value – if accepted probative value high – evidence admissible Legislation Cited: Evidence Act 1995 (NSW), ss 137, 192 Cases Cited: R v Jenkin (No 10) [2018] NSWSC 705 Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 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. HIS HONOUR: The current witness is Lisa Mara. Towards the end of 2014, she was in some kind of a relationship with the accused, Mark Jenkin. Yesterday an issue was ventilated concerning whether she would be permitted to give evidence of a large number of incidents of violence of which her witness statement complained. The Crown relied on that evidence as tendency evidence. 2. This morning I published a judgment in which I allowed one piece of that evidence as tendency evidence; and the reasons for that can be seen in the judgment R v Jenkin (No 10) [2018] NSWSC 705. 3. In addition to that, I allowed evidence which disclosed violence between Mr Jenkin and his stepbrother, Mr Cowan, who is alleged to be a co-conspirator in respect of count 2, which is a conspiracy to murder a witness. 4. Ms Mara commenced giving her evidence by audio visual link at around half past 10 this morning, and I gather was most of the way through the evidence she was expected to give when questions were asked in relation to whether or not she knew the deceased Mark Dower. She then gave evidence of having seen him in an upstairs unit, which I inferred to be the unit of Mr Vukadinovic, who has already given evidence in the trial. There is plenty of evidence to suggest that Mr Dower was present at that unit on a number of occasions. Ms Mara went on to say that she had heard Mr Jenkin asking Mr Dower for money, and that Mr Dower appeared to be willing to give him money. At that stage, she commenced to give evidence which was, in essence, that Mr Jenkin had struck, or punched, or otherwise assaulted Mr Dower. The transcript records the evidence and the first taking of the objection as follows: [1] Q. Did you know a person by the name of Mark Dower? A. Yes I had met him. Q. And where did you meet him? A. Mainly upstairs. In the unit upstairs, there was a man and a lady that lived upstairs. Q. Upstairs from? A. Upstairs from Mark's unit. Q. Yes. Do you know their names? A. I can't remember the guy's name. Like he had an accent. The lady was Tracey. And Mark was often there as well. Mark Dower. Q. Mark Dower? A. Yes. They used to drink together, all three of them. Q. Did you ever see Mark Dower in the company of Mark Jenkin? A. Yeah, like it was mainly confined to that unit block, but upstairs sometimes, you know, sort of visit them and, yeah, yeah, yeah. When, like Mark was, like Jenkin was always with me pretty much, and when we went into the guy with the accent unit, Mark Dower was there. Q. Did you ever observe the interaction between, any interaction between, Mark Jenkin and Mark Dower? A. Yes. There was a time where he was hassling him for money. Q. Who was hassling who for money? A. Mark Jenkin was hassling Mark Dower for money. Q. Where did that hassling take place? A. I couldn't tell you the exact dates. Q. No, where? A. Oh where, sorry. In the guy upstairs unit, with the guy with the accent. Q. Can you recall what was said in relation to this hassling? A. What was that? Q. Can you recall what was said by anyone in relation to the‑- A. Yeah, like it was along the lines, like he was trying to get money out of him because he knew he had a payment coming that day, or something like that. And Mr Dower was like, really nice about it, he was going to give him money, and Mark Jenkin just cracked him over the head for no reason like. Q. How did he do that? LOWE: Your Honour. I've never been advised of this evidence at all. So if there's going to be further evidence, I do want a police statement. 1. It seems that until yesterday there had been no disclosure by the Crown that any evidence at all would be given by the witness in respect of her knowledge of Mr Dower. I am told, and accept, that her witness statement or statements made no mention of him. The circumstances in which this part of the evidence emerged are set out in the statement of a Detective Senior Constable Liackman, which has become Exhibit VD M. That indicates that on Wednesday 16 May 2018 he was having a conversation with the witness who indicated that she had remembered further evidence since supplying her statement and "becoming clean". She said that she had viewed media reports of the matter and in doing so, recognised a picture of the deceased. The statement goes on to say that she had seen Mark, that is Mr Jenkin, punching the deceased. 2. The detective, it seems, attempted to take a statement but, for reasons best known to the witness, she indicated that she did not wish to make a statement but rather would give the evidence in Court. 3. There is nothing in the statement of the witness to indicate anything to suggest that she had observed Mr Jenkin and Mr Dower interacting in relation to money. 4. The objection is based on two related matters: the first is really a question of fairness; the second is that the probative value of the evidence is outweighed by the danger of unfair prejudice. It is the unfairness aspect of that second part of the objection that causes me to say that the two matters are related. 5. Mr Lowe, on behalf of Mr Jenkin, submits that the evidence should be excluded because it is unfair, in the context of a criminal trial of such seriousness, that the accused should be forced to respond to this kind of evidence when very little notice of it has been given. He submits therefore, that the prejudicial effect of the evidence or the danger of unfair prejudice outweighs the probative value of the evidence. That is an objection under s 137 of the Evidence Act 1995 (NSW). 6. The first part of the equation is to consider the probative value of the evidence, that is, the extent to which the evidence might impact on an assessment of the probability of a fact in issue. The facts in issue in this case are on the one hand, the Crown's position that Mr Dower was detained in Mr Jenkin's unit and assaulted there, for the purpose of obtaining money from his cash card account. On the other hand, the defence case, as I perceive it at this stage of the trial, is that Mr Dower was in the unit voluntarily, and Mr Jenkin was attempting to help him dry out from his alcohol problem, and that it was in that context that Mr Dower fell and hurt his head, refusing to go to the hospital because of past experiences of being an involuntary mental health patient in another country. 7. So the issue between the parties is a stark one, and when that is considered, the evidence that is now falling from the witness in my assessment has a very high degree of probative value in terms of explaining the nature of the relationship between Mr Jenkin and Mr Dower. That is, the probative value is high assuming the evidence is accepted in the extraordinary circumstances in which it suddenly emerges on the day before the witness gives evidence. The High Court has made it clear that an assessment of probative value must proceed on the basis that the evidence is accepted, and it does not matter that there are things, as there are here, that would strongly militate towards a finding that the evidence may be, or is, unreliable. 8. There is already material in the hands of defence counsel which will allow him to make a strong attack on the credibility of this witness; and I have referred to that in the judgment on tendency Jenkin (No 10). But taking the evidence as being capable of being accepted, I do find the evidence has a high degree of probative value in view of the issues to be ultimately determined. 9. Against that, I accept that there is a danger of unfair prejudice because of the late notice with which the defence is being informed of the existence of this evidence, and I note that even in the statement there is no reference to anything about money passing between the two. 10. Even so, Mr Lowe is an experienced advocate and cross-examiner, who is capable of cross-examining on that very issue. Why it is that this matter was never raised before yesterday or the day before? Why is it that, when it was raised, there was no mention of money? Why is it that Ms Mara gives evidence of an incident of violence between her and the accused, and says that it happened around her birthday in 2014, when the fact of the matter is Mr Jenkin was in gaol from 18 September 2014 to 17 January 2015? 11. There are procedures available that will allow any prejudice from the late notice to be cured, and I am unable to see that the danger of unfair prejudice outweighs the high degree of probative value of this evidence if it is accepted. 12. For that reason the evidence is admissible, and I will allow it to be led. 13. MR LOWE: I neglected to raise, though your Honour may have dealt with it in your judgment just delivered, that s 192 might come into play about leave, permission or direction. It may be covered, and just in fairness to my client, the extent to which it would be unfair. So 192(2)(b). I would say that I would be, whether it's leave, or whether it's permission, to give this evidence without having been given proper notification of it. It may be dealt with in your judgment, but I‑‑ 14. HIS HONOUR: I don't think it is, and I will deal with it now. Thank you. At the end of delivering that ex tempore judgment concerning the admissibility of the evidence, Mr Lowe on behalf of Mr Jenkin, sought further to rely on the provision of s 192 of the Evidence Act. That provision concerns occasions when the Court may give any leave, permission or direction, and provides a number of criterion that should be taken into account. The High Court held in Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 that s 192 and the criteria therein must be considered in any case where leave, permission or direction is sought. 15. Whether or not a ruling on the admissibility of evidence falls within that provision I am not so sure [and in revising this ex tempore judgment, I am inclined to the view that it does not], but for abundant caution I think I should proceed on an assumption that Mr Lowe's submission that the matters in s 192 are relevant. 16. Insofar as they are not otherwise dealt with under the umbrella of the danger of unfair prejudice in s 137, the giving of the evidence would not be likely to unduly lengthen the trial. I have dealt with unfairness already, but there is no significant unfairness to the accused. In fact, this may provide him with further fuel with which to attack the credibility of the witness. There are other remedies if he seeks to obtain further information about this particular part of the evidence. So whilst I accept that there is unfairness in the matter being raised so late, and take that into account, it is a matter that can be cured by other remedies. 17. As I have indicated, the probative value of the evidence is high and, therefore, for the purpose of s 192(2)(c) it is important evidence. In terms of s 192(2)(d), this is a murder trial, and the nature of the proceedings would suggest that important evidence should be allowed to be elicited even when it is disclosed very late. 18. I have already referred to the power of the Court to adjourn or take other steps to militate against the unfairness, so whilst (on the assumption that s 192 has any work to do here) I have taken it into account, it does not change my decision. 19. I might just add that it is entirely common in criminal trials for lay witnesses to drop into their evidence things that nobody has ever heard of before they say it. One of the great thrills of being a criminal advocate is the ability to deal with surprises when they come. 20. For those reasons, I confirm my ruling that the evidence is admissible.