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Supreme Court 30 April 2018

R v Jenkin and Ors

[2018] NSWSC 547

HomicidePublic order & justice offences
CRIMINAL LAW APPLICATION FOR SEVERANCE OF COUNTS RELEVANT PRINCIPLES WHERE ACCUSED CHARGED WITH MURDER APPLICATION REFUSED CRIMINAL LAW MURDER

Citation: R v Jenkin and Ors [2018] NSWSC 547
Court: Supreme Court of NSW
Date: 30 April 2018
Judge(s): Hamill J

Background

The primary accused faced three counts on a joint indictment: murder of a man whose body was found concealed in a surfboard bag in a common laundry area (count 1), conspiracy to murder a potential witness (count 2), and soliciting a co-accused to murder that witness (count 3). The conspiracy and soliciting charges arose from intercepted telephone calls made while the primary accused was in custody on unrelated matters, during which the Crown alleged he arranged for the witness to be killed. Two co-accused were also charged: one with murder, and a stepbrother with conspiracy to murder the witness only.

The primary accused applied for severance of counts 2 and 3 from count 1 (so that the murder charge would be tried separately from the soliciting and conspiracy charges), and for a separate trial from the stepbrother co-accused. He had earlier been granted a separate trial from the murder co-accused by consent.

The Crown consented to separation from the murder co-accused on the basis that the evidence against that person was significantly different in volume and nature, and that some of it was potentially prejudicial to the primary accused.

  • Whether counts 2 and 3 (conspiracy and soliciting to murder a witness) should be severed from count 1 (murder) under ss 21 and 29 of the Criminal Procedure Act 1986 (NSW), where tendency evidence admissible on the murder charge was not admissible on the other counts.
  • Whether the primary accused should be tried separately from his stepbrother co-accused, who faced only the conspiracy charge, on the basis of cumulative prejudice arising from the stepbrother's statements about him.
  • Whether the primary accused's application for a trial by judge alone could proceed given that not all co-accused applied for one.

Decision

Severance of counts: refused. Hamill J declined to sever the murder count from the soliciting and conspiracy counts. The evidence underlying those charges was logically connected: the Crown was entitled to place before the jury evidence showing the primary accused may have considered himself a suspect in the murder investigation, which provided motive and context for the intercepted calls. That meant much of the murder evidence would be admissible in any event to explain counts 2 and 3. While tendency evidence admissible on the murder charge was not admissible on the other counts, any resulting prejudice was capable of being cured by appropriate jury directions.

Separate trial from stepbrother co-accused: granted. Hamill J reached a different conclusion on the separate trial application. The stepbrother's case was substantially different from and more confined than the primary accused's case. Critically, the stepbrother had made a series of pejorative statements about the primary accused and his murder defence, including characterising him as psychotic, a compulsive liar who "believes his own bullshit," and a stand-over merchant. The court found the cumulative prejudicial impact of those statements could not be cured by direction, making a joint trial unfair to the primary accused.

Trial by judge alone: refused. The application for a judge-alone trial could not succeed because the stepbrother co-accused declined to make a corresponding application. Section 132A(2)(a) of the Criminal Procedure Act requires each accused in a joint trial to apply; mere consent from a co-accused is insufficient. Once the stepbrother's separate trial was ordered, this issue became moot for the primary accused's own trial.

Orders Made

  • Application for severance of counts 2 and 3 refused.
  • Stuart Anthony Cowan to be tried separately from Mark Kenneth Jenkin.
  • The joint indictment to be withdrawn; a fresh indictment against Cowan to be presented in the District Court (in accordance with the Chief Justice's exemption under s 128(2) of the Criminal Procedure Act and the Director's undertaking).
  • Proceedings against Cowan adjourned for mention on 7 May 2018.
  • Trial of Mark Kenneth Jenkin to commence on 2 May 2018, subject to further pre-trial applications.

Key Takeaways

  • Tendency evidence that is admissible on one count but not others does not, of itself, compel severance. Where the underlying facts are otherwise admissible on the remaining counts (for example, to establish consciousness of guilt or motive), any prejudice may be addressed by judicial direction rather than separation of counts.
  • A separate trial application turns on its specific facts. The general preference for co-accused to be tried together can be displaced where one co-accused has made multiple statements that are both pejorative and inadmissible against the other, and where the cumulative prejudice from those statements cannot realistically be remedied by direction alone.
  • Under s 132A(2)(a) of the Criminal Procedure Act, a joint trial can only proceed before a judge alone if each accused makes an application to that effect. A co-accused's consent to such a trial does not satisfy the statutory requirement.
  • The court confirmed that the starting point for both severance and separate trial applications under ss 21 and 29 of the Criminal Procedure Act remains the established common law principles, with each application resolved on its own facts rather than by mechanical application of prior decisions.
  • Where the Crown's case against co-accused differs substantially in volume, nature, and strength, those differences weigh in favour of separate trials and reduce the public interest argument for joint proceedings.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 21, 29, 128, 132A

Cases:
- Baden-Clay v The Queen [2016] HCA 35; 334 ALR 234
- Gall v R [2015] NSWCCA 69
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Mulvihill v R [2016] NSWCCA 529
- R v Brooks [2017] NSWSC 188
- R v Ciantar (2006) 16 VR 26; [2006] VSCA 263
- R v Cook [2004] NSWCCA 52
- R v Fernando & Anor [1999] NSWCA 66
- R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177
- R v Martin & Martin [2017] NSWSC 1106
- R v Middis (Supreme Court (NSW), 27 March 1991, unreported)
- R v Patalis & Spathis (No 1) [1999] NSWSC 649; (1997) 107 A Crim R 432
- R v Pham [2004] NSWCCA 190
- R v Qaumi & Ors (No 3) (Severance and separate trial) [2016] NSWSC 15
- R v Roff [2015] NSWSC 1853
- R v Sievers [2004] NSWCCA 463; (2004) 151 A Crim R 426
- R v White [1998] 2 SCR 72
- Steer v R [2008] NSWCCA 295; (2008) 191 A Crim R 435
- The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32
- The Queen v Glennon (1992) 173 CLR 592