Supreme Court New South Wales Medium Neutral Citation: R v Jenkin (No 16) [2018] NSWSC 908 Hearing dates: 05 June 2018 Decision date: 05 June 2018 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Evidentiary rulings made, see paragraphs [9], [14], [19], [22] and [34]. Catchwords: CRIMINAL LAW – evidence – hearsay – tender of witnesses' statements – witnesses deceased – where conversation recorded in statement a reconstruction – identification of "asserted fact" – where statement contains evidence of what another witness told her – whether first or second-hand hearsay – where witness's account a reconstruction of what the accused told him Legislation Cited: Evidence Act (1995) NSW, ss 60, 65, 67, 106, 108, 137 and 165 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. On 5 June 2018, the Crown tendered three statements made by witnesses who have died since making their statements. Objection was taken to portions of those statements. I made a number of rulings and provided ex tempore reasons for those rulings. This is a revised version of those reasons. Ken Jenkin 1. Objection has been taken to part of a statement of Ken Jenkin dated 11 January 2016, which is Exhibit VD-U on the voir dire. 2. The agreed position of the parties is that Mr Ken Jenkin has died, and a notice pursuant to s 67 of the Evidence Act (1995) NSW was served. No technical objection is taken, and the accused accepted that the evidence is admissible as an exception to the hearsay rule under that section. However, there are a number of parts of the statement that the parties agree are not admissible. These were redacted from the version tendered on the voir dire. 3. The statement contains a number of conversations between the witness, Mr Ken Jenkin, and his son (that is the accused) and stepson (that is a co-accused or co-offender on the Crown case, Stuart Cowan). In essence, the father (that is the witness) reports back to the accused what Mr Cowan told him, and the Crown, as I understand it, essentially seeks to rely on Mr Jenkin's responses as perhaps adopting part of what was allegedly said. 4. The statement has the flavour of the witness himself trying to piece together what happened from snippets of information, or conversations he had with some of the relevant participants. 5. The first objection is to paragraph 25: 25. I said to Mark something like, 'Stuart had a conversation with me at the café. I want to tell you what Stuart said and I don't want you to interrupt. Stuart told me that the person that died did so in your flat and it was an accident. Stuart said you were letting him stay there and I think he said that he fell over while you were out and that you found him dead. Stuart has then rung me a couple of weeks ago and told me that that what he said was a load of bullshit and that it was just a figment of your brain. 1. Having considered the objection, and the submissions of the Crown in support of the admission of the statements in that paragraph, I formed the view that part of paragraph 25 is admissible to place in context the comment of the accused in paragraph 26, which was: "I did tell Stuart to tell you it was an accident, because I knew I would end up in trouble." However, the words immediately preceding that (in paragraph 25) are: "Stuart has then rung me a couple of weeks ago and told me that that what he had said was a load of bullshit, and that it was just a figment of your brain." That is what the witness is said to have relayed to the accused, and nothing in the conversation that followed suggests that Mr Jenkin adopted that part of Mr Cowan's opinion or what he allegedly said. 2. Stuart Cowan of course is not available to be cross-examined. He has a trial to be held in the District Court later this year. 3. The fact that Mr Ken Jenkin is not available for cross-examination is not a matter of great moment, because that is the very purpose of the exception to the hearsay rule, and warnings about the potential unreliability of such evidence can overcome any danger of unfairness or prejudice. But I cannot see any basis upon which the sentence commencing, "Stuart" and ending in "brain" (which is the last sentence of paragraph 25), is admissible, and accordingly my ruling is that that sentence is excluded. The balance of that paragraph will be admitted, but limited to place the conversation that follows in context. 4. The next objection is to the final sentence of paragraph 30. This relates to a conversation, or to the back-end of the conversation to which I have just been referring, when Mr Ken Jenkin seeks to relay what the accused said to him about what actually happened to Mr Dower. 5. To put it in context, the witness indicates that the accused talked continuously, and that the conversation went in different directions and not in exact order, and that he was, when making his statement, reconstructing in the sense that he said: "I put it in the order that I took it to be". 6. There is evidence before the Court which places those observations in some context, and that evidence comes in the form of intercepted telephone calls involving Mr Jenkin, and a video recording of what I take (at least on the Crown case, and perhaps also on the accused's case) is Mr Jenkin in his flat with Mr Dower and Mr Turner in which Mr Jenkin is speaking. In all of those conversations, Mr Jenkin's mode of communication is rapid, discursive and very difficult to follow. It is thus necessary to consider what Mr Ken Jenkin says with a degree of caution. Indeed, the part to which objection is taken commences with, "I think Mark said it". What he said is "I think Mark said, 'Paul thought Mark might die from detoxing and being beaten up'". 7. The reference to Paul is a reference to Paul Turner. He has already given evidence in the trial, and was able to give direct evidence of his observations of Mr Dower. In my view, the portion objected to has little or no probative value, and has potential for prejudice because it is truly a reconstruction. Even on its face, it is only what the witness thought Mark said in the course of what I have no doubt was a rapid and discursive narrative of events. 8. So for those reasons, I rule that the final sentence of paragraph 30 is inadmissible. Actually I think it is the penultimate sentence, it being agreed that the final sentence is inadmissible and has been redacted from the copy of the statement tendered on the voir dire but I rule these words: "I think Mark said Paul thought Mark might die from detoxing and being beaten up" are inadmissible. Kylie Strang 1. Objection has been taken to part of a witness statement of Kylie Strang dated 15 December 2015 which is Exhibit VD-V on the voir dire. 2. It is agreed between the parties that Ms Strang has died, and that the Crown has served appropriate notices in an attempt to adduce first-hand hearsay under s 67 of the Evidence Act. No objection is taken on the basis of any failure to comply with that section or otherwise under that section. 3. There are two specific passages to which objection is taken. The first is the final words of paragraph 6, which is in these terms: "I'm aware that [Stuart Cowan] took heroin once, but he finds it hard to take heroin as he finds it hard to inject it". The accused objects to the words: "but he finds it hard to take heroin as he finds it hard to inject it". 4. The relevance of this evidence, as I perceive it, is that there is some evidence that after the accused said words to Mr Cowan to the effect that he should give a potential Crown witness a "hot shot", which is to say an overdose of heroin, Mr Cowan took steps in an attempt to obtain heroin. Accordingly, evidence that he is not a person who uses heroin has a capacity to impact upon the issue of why he may have been trying to source heroin after the conversation relating to the "hot shot". 5. No objection is taken to the words: "I'm aware that he took heroin once", and my assessment is that allowing that, without what follows, would be misleading. The evidence is relevant, and any potential for prejudice because of the absence of any ability to cross-examine can be balanced by taking into account the kind of warning that must be given when hearsay evidence is admitted: s 165(1)(a) Evidence Act. Accordingly, I find that the final words of paragraph 6 are admissible. 6. The second objection to Ms Strang's statement is to some or all of the words in paragraph 12. That paragraph reads: 12. I also had a conversation with Stuart [Cowan] about the fact that Jenko wanted him to take drugs to him in gaol. I begged him not to do it, Jenko just had that intimidation over Stuart. As far as I know, he never took the drugs up. 1. There is other evidence in the case that may give rise to an inference that the accused was seeking to have his stepbrother, Mr Stuart Cowan, bring him contraband, including drugs, to the gaol. There is also evidence in the case from which an inference could be drawn that Mr Cowan tended to follow his stepbrother's directions, and that this may have been as a result of fears he had of his stepbrother. 2. The relevance of that is to the counts in which it is alleged that the accused solicited Mr Cowan to murder a potential Crown witness, although it happened at a time when no charges had been laid. I accept the evidence does have relevance. However, the way in which the statement reads makes it almost impossible for the accused to understand exactly what it is Ms Strang was attempting to say. The words, "Jenko just had that intimidation over Stuart" has very little capacity rationally, and I underline rationally, to affect the facts in issue. It does have a capacity to do prejudice, and even though I can direct myself to exercise caution, I think the safer course is simply to rule that evidence to be inadmissible, and I do so. Tracey Zonneveld 1. The Crown seeks to tender evidence contained in a statement of witness Tracey Zonneveld dated 18 April 2015 and admitted as exhibit VD-W on the voir dire. It is agreed between the parties that Ms Zonneveld is deceased and that pursuant to s 67, a hearsay notice has been served by the Crown upon the defence and no objection is taken in respect of that. 2. However, objection was taken and articulated briefly in the following way: "It is in the nature of Dusan Vukadinovic's evidence, not this witness' evidence" 1. In the course of argument, the question arose as to whether particular parts of the statement are first-hand hearsay or second-hand hearsay. The exception to the hearsay rule in s 65 is restricted to first-hand hearsay. Anything that Ms Zonneveld says in her statement as to what she saw, heard or otherwise perceived is first-hand hearsay as it comes out of this statement. However, the parts to which objection is taken – and that is, in essence, paragraph 8 and paragraph 15 – include assertions not of what she saw (although it includes some such assertions) but, rather, assertions of what she was told by another Crown witness, that is Dusan Vukadinovic. 2. Insofar as the statement records what Dusan told her, it is second-hand hearsay insofar as it comes into evidence via her statement. If she were here to give evidence of what was said by Dusan, that would be first-hand hearsay. But the "asserted fact" for the purpose of s 65, as the evidence comes in through this statement, is not the substance of what Dusan told her, but the fact that Dusan said those particular words. 3. As the argument developed, the Crown seemed to accept that proposition. Similarly, the accused seemed to accept the proposition that the fact that these things were said (by Dusan) may be admissible, but maintained the objection to the evidence being used to prove the substance of what was said. 4. Parts of the statement are ambiguous as to exactly what the witness saw and heard herself, as opposed to what Dusan told her had happened. Paragraph 8 and paragraph 15 are in the following terms: 8. JENKO had also taken Donny's Keycard from him. Donny got me to keep his Keycard for him so that JENKO couldn't get it. Donny told me that JENKO would take him to the back and get him to take money out and then take the money from him. I would loan Donny money and JENKO would tell Donny not to pay me and that he'd be in trouble if he paid me money back. Whenever JENKO was living at his unit, every pay day JENKO would take Donny to the back and take money from him. 15. Donny would often have bruises on his back or shoulder and a couple of times I saw bruises on his face. The bruises on his back and shoulder Donny told me that JENKO had done them. He came into my unit and lifted his shirt and showed me and said "JENKO did this." I saw this about 3 or 4 times over 12 months. Whenever JENKO was not around or staying at his unit everything was good. 1. The Crown ultimately sought to rely on the fact that things were said – such as "Donny told me that Jenko would take him to the bank and get him to take money out and then take the money from him" – not to prove the fact that Mr Jenkin did that, but to prove that Donny had complained about it. 2. Similarly, the Crown sought to rely on paragraph 15 that Dusan told her that Jenko caused the bruises on his back and shoulder. In that way, the Crown was not seeking to rely on the evidence to prove the truth of those propositions, (the asserted facts being those made by Dusan) but, rather, simply to prove that Ms Zonneveld told police that Dusan had told her certain things about that asserted fact, being the fact of the conversation. 3. That was said to be admissible pursuant to s 106, being an exception to the credibility rule, and noting the provision of s 60 allowing such evidence for a non-hearsay purpose. I accept that the evidence could be admitted technically in that way and that any prejudice could be cured, particularly in a Judge alone trial, by taking into account the kinds of directions required when hearsay evidence is given pursuant to s 165 of the Evidence Act. 4. However, even accepting that, I have determined that the evidence of what was said should not be admitted. I reach that conclusion because it has very little capacity to impact upon the real issues in this case. The fact that Dusan Vukadinovic asserts that he was assaulted and stood over by Mr Jenkin is already the subject of reasonably clear evidence from the police who indicated that he had made a complaint, albeit had not signed his statement, before the investigation into Mr Dower's death got underway. It was only after that investigation commenced that he signed his statement. Nevertheless, evidence capable of re-establishing his credibility following the attack on that credibility by reference to, amongst other things, his significant mental health issues, is already before me. 5. Ms Zonneveld's assertions in this statement do not really take the matter very far and I assess its probative value on the issues to be quite low. 6. The provisions in ss 65 and 108, taken in combination with s 165 (that is the appropriate warnings as to the potential unreliability of hearsay evidence), are such that evidence such as this would ordinarily be admissible. However, doing the balancing exercise required in s 137, in my view it is safer that the evidence be excluded on the basis that any probative value it has (which is merely to support the credibility of Mr Dusan Vukadinovic) is minimal in the circumstances. The potential for unfair prejudice arising from the absence of any ability of the accused to cross-examine on those hearsay assertions outweighs the probative value, and so I rule that the evidence is inadmissible, except insofar as paragraph 8 and 15 contains evidence of what Ms Zonneveld actually saw, heard or perceived. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2018