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Supreme Court 15 May 2018

R v Jenkin (No 8)

[2018] NSWSC 704

Assault & violenceHomicide
CRIMINAL LAW EVIDENCE TENDENCY EVIDENCE WHERE ACCUSED CHARGED WITH MURDER ECCENTRICALLY ARTICULATED TENDENCIES COMPLEX INTERPERSONAL RELATIONSHIPS

Citation: R v Jenkin (No 8) [2018] NSWSC 704
Court: Supreme Court of New South Wales
Date: 15 May 2018
Judge: Hamill J

Background

The accused, Mark Jenkin, faced trial for the murder of a man referred to as the deceased, Mark Dower. The prosecution alleged that Jenkin detained Dower in his unit in Mangerton near Wollongong, accessed Dower's bank card, assaulted him during the detention, and ultimately caused or contributed to his death. The trial proceeded as a judge-alone matter before Hamill J.

The prosecution sought to rely on tendency evidence from a witness referred to as JG. JG described an incident in late March or early April 2015 in which Jenkin entered her bedroom, pinned her to the bed with his hands around her throat, repeatedly slapped and threatened her over a period of approximately five hours, and made menacing comments about her family. The Crown argued this evidence was admissible under the tendency evidence provisions of the Evidence Act 1995 (NSW).

The defence objected to the evidence on the twelfth day of trial. Hamill J received the statement on the voir dire (a preliminary hearing to assess admissibility), called for submissions, ruled the evidence inadmissible, and indicated reasons would follow. This judgment delivers those reasons.

  • Whether the proposed tendency evidence had "significant probative value" within the meaning of s 97 of the Evidence Act 1995 (NSW)
  • Whether the evidence from JG was capable of establishing the specific tendency identified in the Crown's tendency notice, namely a tendency "to detain persons and to intimidate and physically assault them"
  • Whether, even if the evidence established some tendency toward violence, it had significant probative value having regard to the issues actually in contest at trial

Decision

Hamill J identified four tendencies set out in the Crown's tendency notice. Three of those could not plausibly be supported by JG's evidence: the first related specifically to conduct toward the deceased; the second involved extorting money; and the fourth concerned locking people inside Jenkin's own unit. Only the third tendency, a tendency "to detain persons and to intimidate and physically assault them," was a candidate for JG's evidence to support.

The critical problem with the Crown's case on tendency was that JG's account contained no allegation of detention. Her statement actually indicated she told Jenkin she was not going anywhere until he left. Hamill J noted that while detention might theoretically be inferred from the circumstances, any such inference ran directly against what JG herself described as happening. The tendency notice was framed conjunctively: detention was part of the tendency asserted, not an optional component.

Applying the test of "significant probative value" under s 97, and drawing on the High Court's guidance in IMM v The Queen and Hughes v The Queen, Hamill J accepted that the evidence, if believed, could establish a general tendency toward violence. That general tendency was relevant to the contested issues at trial. However, relevance alone is not sufficient: the question is whether the evidence has significant probative value, assessed against the tendencies identified in the notice and the specific issues the trial must resolve.

Hamill J concluded that the evidence did not meet that threshold. The absence of any detention element meant the evidence could not adequately support the identified tendency. The Crown's additional submission, that both incidents involved drug use, was not recorded in the tendency notice and did not meaningfully elevate the probative value. The evidence was therefore excluded.

Orders Made

• Evidence from paragraphs 12-14 of JG's evidence was excluded

Key Takeaways

  • Tendency evidence under s 97 of the Evidence Act 1995 (NSW) must have "significant probative value," a threshold that exceeds mere relevance under s 55. Evidence establishing only a general tendency toward violence may not suffice if the identified tendency in the notice is more specific.

  • Where a Crown tendency notice frames a tendency conjunctively, for example as a tendency "to detain persons and to intimidate and physically assault them," proposed evidence that addresses only part of that compound tendency may fall short of the required probative value.

  • The Supreme Court applied the High Court's approach in Hughes v The Queen to confirm that similarity between the tendency evidence and the conduct charged is not a determinative factor, but the evidence must still be capable of establishing the tendency actually identified in the notice with sufficient particularity.

  • Probative value is assessed by reference to the specific issues in contest at the trial, not in the abstract. Even relevant tendency evidence can fall below the s 97 threshold when weighed against the actual issues the jury or fact-finder must resolve.

  • The tendency notice itself constrains the admissibility argument: matters not recorded in the notice, such as the Crown's submission here about concurrent drug use, cannot readily be relied upon to bolster an otherwise insufficient probative value case.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 97, 101, 165

Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Hughes v The Queen [2017] HCA 20; 92 ALJR 52