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Supreme Court 18 May 2018

R v Jenkin (No 10)

[2018] NSWSC 705

Assault & violenceHomicideDomestic & family violence
CRIMINAL LAW TENDENCY EVIDENCE EVIDENCE OF FORMER PARTNER OF ACCUSED EVIDENCE OF DOMESTIC VIOLENCE WHERE ACCUSED CHARGED WITH MURDER OFFENDER

Citation: R v Jenkin (No 10) [2018] NSWSC 705
Court: Supreme Court of New South Wales
Date: 18 May 2018
Judge(s): Hamill J

Background

The accused was charged with murder. The Crown alleged he detained the deceased in his home unit, assaulted him, and left him to die, also extracting money using the deceased's cash card. The defence maintained the deceased was at the unit voluntarily to recover from alcohol dependency and died following a fall.

The Crown proposed to call a former partner of the accused as a witness. Her statement included multiple accounts of violence she said the accused had perpetrated, including an incident in which he beat her and then confined her in a laundry room. This raised questions about which parts of her evidence could be admitted as tendency evidence.

Two additional issues required resolution before she gave evidence: whether accounts of the accused assaulting a co-offender (his step-brother) were admissible, and whether she could give her evidence remotely by audio visual link (AVL) from Wollongong.

  • Which parts of the witness's statement satisfied the "significant probative value" threshold for admission as tendency evidence under s 97 of the Evidence Act 1995 (NSW)?
  • Whether the third tendency alleged (a tendency to detain, intimidate, and physically assault persons) should be read conjunctively, such that general acts of violence without detention were insufficient?
  • Whether reliability concerns about the timing of the alleged detention incident affected admissibility of that evidence?
  • Whether evidence of the accused assaulting the co-offender was admissible as tendency evidence, or on any other basis?
  • Whether the court should direct that the witness give evidence by AVL under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), over the accused's opposition?

Decision

General violence insufficient; detention required. Hamill J held that paragraphs of the statement describing the accused's general pattern of violence and cruelty, without any element of detention, lacked significant probative value under s 97. The Crown accepted that the third tendency in the tendency notice (the only relevant one) must be read conjunctively: the tendency to intimidate and assault was tied specifically to persons who were detained. Evidence of assaults alone, without detention, did not fit that tendency and was excluded.

The laundry incident in paragraph 16 was admissible despite reliability concerns. Counsel for the accused effectively conceded significant probative value by directing his objection to s 101, which only becomes relevant once s 97 is satisfied. Applying Hughes v The Queen, Hamill J confirmed that where the central issue is whether the alleged offence occurred at all (rather than identity), no particular degree of similarity between the tendency evidence and the charged conduct is required. The paragraph's account of confining the witness in a laundry room was capable of establishing a tendency to detain, intimidate, and assault, and therefore possessed significant probative value. As to reliability, the accused established that he was in custody on the date the witness attributed to the incident. Following IMM v The Queen, however, reliability is a matter for the jury rather than a basis for exclusion at the admissibility stage. The paragraph 16 evidence was admitted.

Violence against the co-offender was not admissible as tendency evidence but was admissible for a limited purpose. Evidence that the accused assaulted his step-brother, who was also an alleged co-offender, could not be used as tendency evidence against the accused on any count. However, it was admissible on a limited basis: the step-brother had allegedly been asked by the accused to arrange a killing to eliminate a potential witness. The assault evidence was relevant to explain the nature of the relationship between the two men and to place the step-brother's conduct in context. A limiting direction was made under s 136 of the Evidence Act restricting use of the evidence to that purpose only.

The AVL direction was granted. The Crown bore the onus of establishing that a direction under s 5B was in the interests of the administration of justice. Hamill J was satisfied it was. Significant weight was given to a clinical psychologist's opinion that giving evidence would expose the witness to extreme stress, and that AVL would reduce the impact of that trauma. The concern about assessing the witness's demeanour was addressed by noting that another witness had already given evidence by AVL and his demeanour had been readily assessed. The direction was made with the proviso that it could be revoked if the technology proved inadequate.

Orders Made

  • Evidence in paragraphs 9, 10, 13, 14, and 15 of the witness's statement excluded as tendency evidence.
  • Evidence in paragraph 16 admitted as tendency evidence.
  • Evidence of assault on the co-offender admitted, with use limited under s 136 of the Evidence Act to explaining the nature of the relationship between the accused and the co-offender and placing the co-offender's conduct in context.
  • Direction made under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 permitting the witness to give evidence by audio visual link from outside the courtroom.

Key Takeaways

  • Under the Evidence Act 1995 (NSW), general evidence of an accused's violence toward others lacks significant probative value where the charged tendency is specifically conjunctive (here, detention combined with assault and intimidation). Evidence that does not reflect the full conjunction is inadmissible as tendency evidence.

  • Applying Hughes v The Queen, where the issue at trial is whether the offence occurred at all (rather than identity), courts do not require a high degree of similarity between the tendency evidence and the charged conduct. Significant probative value is assessed by reference to the live issues in the trial.

  • Reliability concerns about tendency evidence, including a factual impossibility in the date attributed to an incident, go to weight for the jury rather than admissibility. This reflects the approach confirmed by the High Court in IMM v The Queen.

  • Evidence of uncharged acts of violence against a co-offender may be inadmissible as tendency evidence yet still admissible for a limited non-tendency purpose, such as explaining the nature of a relationship or making sense of a co-offender's conduct. A use-limiting direction under s 136 of the Evidence Act is the appropriate mechanism.

  • Where a witness is alleged to have experienced trauma at the hands of an accused, a clinical psychologist's opinion about the stress of in-court testimony is relevant to the interests-of-administration-of-justice test under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998. The accused's opposition places the onus on the prosecution but does not preclude the direction being made.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 101, 135(c), 136
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B

Cases:
- Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Jenkin (No 8) [2018] NSWSC 704