Citation: R v Jenkin (No 9) [2018] NSWSC 743
Court: Supreme Court of New South Wales
Date: 16 May 2018
Judge: Hamill J
Background
The accused faced multiple counts, including murder (count 1) and conspiracy to murder (count 2). The Crown alleged that the accused directed a co-accused, Mr Cowan, to arrange the murder of a potential witness against him. The alleged method was a "hot shot," described as a lethal dose of heroin administered to that witness.
The Crown sought to tender a listening device recording of a conversation involving a present witness, Ms Freimann, her partner, Mr Cowan, and others. The conversation included discussion of obtaining buprenorphine strips (a medication used to assist with opiate addiction) and an offer by Mr Cowan to pay cash for ice, cannabis, or other drugs.
The Crown's purpose in tendering the recording was narrow: to establish the nature of the relationship between Ms Freimann and Mr Cowan, specifically that it was a drug-supply relationship. This was said to support the Crown's case that Mr Cowan later approached Ms Freimann to obtain heroin for the hot shot.
Legal Issues
- Whether the recording was relevant under s 55 of the Evidence Act 1995 (NSW), in that it could rationally affect the assessment of a fact in issue
- Whether the evidence was admissible as an implied admission made with authority under s 87 of the Evidence Act (the former co-conspirators rule)
- Whether the evidence should be excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice
Decision
On the s 87 objection, the Crown made clear it was not tendering the recording as an admission by Mr Cowan made on the accused's behalf. Hamill J confirmed the evidence could not be used in that way and the s 87 objection did not apply on those facts.
On relevance, Hamill J held the evidence satisfied the s 55 test. The Crown's case required proof that Mr Cowan took steps to obtain heroin to carry out the alleged conspiracy. Evidence that Mr Cowan and Ms Freimann had an existing drug-supply relationship could rationally affect the probability of that fact. The recording of their conversation about drugs was therefore relevant, even though the drugs discussed were not heroin.
On the s 137 discretionary exclusion, Hamill J found the danger of unfair prejudice was very slight in the circumstances. The trial was proceeding before a judge alone, and Hamill J noted that a judge is capable of receiving potentially prejudicial evidence and applying it only for the specific purpose for which it is admitted, without the risk of general prejudice that might arise before a jury. The probative value was found to outweigh the danger of unfair prejudice.
The recording was admitted on the single basis that it established the connection and nature of the relationship between Ms Freimann and Mr Cowan. Hamill J expressly reserved the question of whether the evidence could also support a broader inference about the accused's direction and control over Mr Cowan, and declined at that stage to use any part of the recording to draw inferences about Mr Cowan supplying drugs to the accused while in custody.
Orders Made
• Evidence establishing a connection between Ms Freimann and Mr Cowan is admitted
Key Takeaways
- Under s 55 of the Evidence Act 1995 (NSW), evidence of a drug-supply relationship between a witness and a co-accused was held relevant where the Crown's case depended on proving that the co-accused later approached that witness to obtain a different drug to commit a murder.
- A judge alone trial was a significant factor in the s 137 analysis. The Supreme Court found that the risk of unfair prejudice from drug-related evidence was materially reduced where the fact-finder is a judge capable of confining the evidence to its permitted use.
- Probative value does not require the evidence to be conclusive or direct. Evidence of a general drug-supply relationship was sufficient to rationally affect the probability of the specific fact in issue, even though the drugs discussed in the recording differed from those alleged in the conspiracy.
- Courts may admit evidence on a limited, expressly stated basis and reserve judgment on whether the same evidence could serve additional purposes until further submissions are heard.
- The former co-conspirators rule, now codified in s 87 of the Evidence Act, applies only to admissions made with authority. A co-accused's statements cannot be used as admissions against an accused unless that specific gateway is properly established.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 55, 87, 137
Cases cited: None stated in the judgment.