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Supreme Court 27 June 2018

R v Jenkin (No 18) (Verdict)

[2018] NSWSC 978

HomicidePublic order & justice offences
CRIMINAL LAW MURDER CONSPIRACY TO MURDER TRIAL BY JUDGE ALONE CIRCUMSTANTIAL CASE BODY IN SURFBOARD BAG

Citation: R v Jenkin (No 18) (Verdict) [2018] NSWSC 978
Court: Supreme Court of New South Wales
Date: 27 June 2018
Judge: Hamill J

Background

The decaying body of a man (the deceased) was found hidden inside a surfboard bag in an external laundry of a Wollongong housing estate in April 2015. He had last been seen alive some weeks earlier, and evidence established he had spent the final days of his life in the accused's ground-floor flat at the same estate. The accused was charged with murder, conspiracy to murder a witness, and (in the alternative) soliciting another person to murder that witness.

The accused elected a judge-alone trial under s 132 of the Criminal Procedure Act 1986 (NSW), with the consent of the Director of Public Prosecutions. The trial proceeded before Hamill J sitting in Wollongong from May 2018.

The prosecution alleged the accused had detained the deceased, subjected him to serious assaults causing injuries identified at autopsy, and then helped conceal the corpse. The prosecution also alleged that, while in custody awaiting trial, the accused arranged with a relative to kill the key witness to the body's disposal by administering a fatal heroin overdose, to prevent her from giving evidence.

  • Whether the prosecution had proven beyond reasonable doubt that the accused committed acts causing the deceased's death, given that the precise act causing death was unknown.
  • Whether the accused acted with the requisite mental state for murder: either an intention to inflict grievous bodily harm, or reckless indifference to human life (that is, foreseeing the probability, not merely the possibility, of death).
  • Whether the medical and forensic evidence could reliably attribute the injuries observed at autopsy to the accused, given that some injuries may have been caused after death (including the body being dropped from a first-floor window) or by other persons.
  • Whether the circumstantial case excluded all reasonable hypotheses consistent with innocence.
  • Whether the recorded telephone calls from custody established, beyond reasonable doubt, a criminal agreement to murder the witness or, in the alternative, a solicitation to do so.
  • What evidentiary warnings, equivalent to those that would be given to a jury, were required in respect of potentially unreliable evidence.

Decision

Hamill J convicted the accused of murder. The prosecution case was built on circumstantial evidence: there was no single identified act proven to be the cause of death, and the precise mechanism of death was complicated by the state of decomposition and the handling of the body after death. Nonetheless, the court found the totality of the evidence established beyond reasonable doubt that the accused had engaged in a course of serious assaultive conduct against the deceased over several days.

The court accepted that where a series of violent acts are proven and death results, it is not necessary for the prosecution to isolate the single act that caused death, provided the overall conduct is established to the required standard. The court considered whether the accused intended to cause grievous bodily harm or acted with reckless indifference to human life, examining the nature and extent of the injuries (including an avulsed tooth found in the deceased's bowel, indicating ante-mortem trauma) alongside the failure to seek medical attention as the deceased deteriorated.

The defence arguments, including that injuries could have been caused by falls, by the deceased's own lifestyle, by post-mortem handling of the body, or by others (including a named third party who may have assaulted the deceased earlier), were considered carefully. The court applied the relevant warnings it would have given to a jury regarding potentially unreliable witnesses and the use of tendency or other sensitive evidence. It found these alternative explanations did not give rise to a reasonable doubt sufficient to displace the prosecution case.

On the conspiracy and solicitation charges, the court found the telephone calls from custody plainly established the accused had solicited his relative to obtain heroin and administer it to the witness to cause her death. The accused's explanation that he was under the influence of drugs in custody and was merely "rambling" was rejected. The court found the prosecution had proven the relevant charges relating to that conduct beyond reasonable doubt.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Where a series of assaults is proven and death results, the prosecution is not required to identify the single specific act that caused death, provided the overall course of conduct is established beyond reasonable doubt and the mental element is made out.
  • Murder by reckless indifference to human life requires proof that the accused foresaw the probability (not merely the possibility) of death resulting from the relevant conduct, consistent with R v Crabbe (1985) 156 CLR 464 and Aubrey v The Queen (2017) 260 CLR 305.
  • In a circumstantial case, the prosecution must exclude any reasonable inference or hypothesis consistent with innocence before a guilty verdict can be returned.
  • Post-mortem interference with a body, including dropping it from a height, can complicate the forensic attribution of injuries to an accused, and courts must apply appropriate caution when assessing whether particular injuries were caused ante-mortem or post-mortem.
  • In a judge-alone trial under s 133 of the Criminal Procedure Act 1986 (NSW), the judge must record the relevant principles of law, the findings of fact relied upon, and must take into account any warning that would have been given to a jury, including warnings about potentially unreliable evidence under s 165 of the Evidence Act 1995 (NSW).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18 and 26
- Criminal Procedure Act 1986 (NSW), ss 132 and 133
- Evidence Act 1995 (NSW), ss 97, 101, and 165

Cases:
- Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17
- Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18
- Campbell v R [2014] NSWCCA 175
- Campbell v The Queen (1981) WAR 286
- Davies v The King [1937] HCA 27; (1937) 57 CLR 170
- HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
- Hughes v The Queen [2017] HCA 20; 92 ALJR 52
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Lane v The Queen [2018] HCA 28
- McEwan v The Queen [2013] VSCA 329
- McPhillamy v R [2017] NSWCCA 130
- Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2
- R v Brooks [2017] NSWSC 188
- R v Crabbe (1985) 156 CLR 464; [1985] HCA 22
- Earlier interlocutory decisions in the same proceedings: R v Jenkin [2018] NSWSC 634; R v Jenkin (No 2) [2018] NSWSC 697; R v Jenkin (No 5) [2018] NSWSC 730; R v Jenkin (No 8) [2018] NSWSC 704; R v Jenkin (No 10) [2018] NSWSC 705; R v Jenkin (No 14) [2018] NSWSC 837