On 15 May 2018, the twelfth day of this Judge alone trial (the first two of which were occupied by pre-trial issues), the Crown sought to lead evidence from the witness JG of an incident she said occurred between her and the accused Mark Jenkin in late March or (more likely) early April 2015. The Crown sought to rely on the evidence as tendency evidence. Notices had been served and there was some discussion about the matter during the pre-trial skirmishes. However, the issue of the tendency evidence, of which there is a significant volume, was not finally resolved. Each of the parties made some concessions in the course of the pre-trial hearing and it was determined that the matter should be considered witness by witness as the evidence was adduced in the trial proper.
In the course of JG's evidence (Transcript ("T") 732-742), Mr Lowe (counsel for Mr Jenkin) raised an objection to part of the evidence (T 734). I received the statement on the voir dire and called on submissions from the learned Crown Prosecutor. I ruled that the evidence was not admissible as tendency evidence and indicated that I would provide reasons later. These are those reasons.
The Crown has relied on an amended tendency notice on the pre-trial hearing (Ex VD-B). A document styled "REVISED TENDENCY EVIDENCE RELIED UPON" was provided in the course of the pre-trial argument (MFI-VD12). In each document, the Crown indicated an intention to tender (as tendency evidence) paragraphs 12, 13 and 14 of JG's police statement dated 19 May 2015 (Ex VD-F).
The tendency notice identified in paragraph 2 the following four "tendencies" that the Crown seeks to establish against the accused:
1. To act violently towards Mark Dower [who is the deceased in relation to whom the accused is charged with murder].
2. To stand over persons and intimidate them to pay him cash and to obtain sums of cash from these persons.
3. To detain persons and to intimidate and physically assault them.
4. To lock persons inside his unit if they came inside.
The only one of these tendencies to which JG's evidence could possibly relate is the third. The first tendency relates specifically to acts perpetrated on the deceased. The second involves standing over people for money. The fourth, rather eccentrically enunciated, is a tendency to lock people inside his own unit "if they came inside". The incident of which JG complains does not involve any attempt to extort money and did not take place at Mr Jenkin's flat. Accordingly, the tendency to which JG's evidence relates must be the tendency "to detain persons and to intimidate and physically assault them."
The prosecution case is that the accused detained Mark Dower in his unit in a large housing commission complex in Mangerton near Wollongong. The purpose of this detention, on the prosecution case, was to extort or appropriate money from Mr Dower. There is some evidence that Mr Jenkin had access to Mr Dower's credit, debit or cash card and that Mr Jenkin admitted striking the accused during the course of the detention. There is also evidence that Mr Jenkin took Mr Dower away from another unit at which he was staying and of an attempt to have Mr Dower provide evidence to police (or the Local Court) to facilitate the return of a sum of money taken by police from Mr Jenkin (but which, as I understand it, was said to be a loan from Mr Dower). There is also evidence of the deceased being seen with injuries and, later, in the bathtub at Mr Jenkin's unit. At least one witness says he was dead in the unit and that she assisted Mr Jenkin to move the body. Much of this evidence comes from witnesses whose credibility is, at least, questionable. Many of the witnesses fall into one or other of the categories in s 165 of the Evidence Act 1995 (NSW). It is expected that evidence will be adduced later in the trial concerning things said by the accused in intercepted telephone calls that are said to constitute admissions (direct or implied) to various aspects of the Crown case. Some evidence has already been given, without objection when the evidence was called, in support of the Crown's tendency case. Mr Vukadinovic gave evidence of Mr Jenkin mistreating him, detaining him and extorting money from him.
Based on submissions made in the pre-trial hearing and the cross-examination of witnesses during the course of the trial, the defence case appears to be that Mr Dower was present at the accused's unit at the relevant time. However, he was not being detained against his will and could have left the unit had he chosen to. He was an alcoholic and Mr Jenkin was assisting him to "dry out". He had a history of involuntary admissions to psychiatric hospitals and resisted any suggestion that he be taken to hospital. His injuries are explicable by reference to assaults committed on him by other men (in particular a previous witness Jodie Pike), his constantly falling down (including a heavy fall in the bathroom of Mr Jenkin's unit), and post mortem injuries to his body caused in a variety of ways that need not be detailed here.
It is expected that there will be a major dispute in relation to the significance of the findings on post mortem examination and a contest between the evidence of the pathologists and other experts.
In view of the factual dispute at the heart of the trial - and putting to one side some interesting legal questions that are expected to arise in terms of liability for murder - it is obvious that evidence of Mr Jenkin's tendency towards violence is relevant evidence. That is, if accepted, such evidence has a capacity to rationally affect the assessment of the probability of a fact in issue the trial (Evidence Act, s 55). However, accepting the evidence is relevant, the question is whether JG's evidence has "significant probative value" (s 97) and, if so, whether that probative value substantially outweighs any prejudicial effect the evidence may have (s 101).
The impugned part of JG's statement is as follows:
12. Jenko came into the bedroom and threw me onto the bed. He pinned me down with his hands around the throat. I could feel the pressure on my throat and it was slightly restricting my breathing. I started to cry and he got up and left the room.
Jenko called me a name and I said, "You're a sick unit".
13. Jenko then returned to my room and shoved me onto the bed and slapped me to the head twice. I cried again and Jenko left. I closed the door and he would return.
Jenko said, "You're a dog. Your daughters in protection"
He was just talking angry shit.
Jenko said, "Pack your shit or I'll throw it out of here".
This continued on for at least 5 hours with him hurting me and me crying. It was like he was getting off on doing these things to me. Each time Jenko attacked me I tried to fight back.
Jenko said, "If you keep mouthing off I'll kick the fuck out of you. You don't know who your fuckn dealing with".
I said, "My nephew, DD will kick the fuck out of you for what you're doing to me".
Jenko said, "If you cause conflict between him and me it will fall onto you."
14. When Jenko left the bedroom, I messaged Danny to come home which he did after a while. As soon as Danny returned it was like nothing happened. Noting was said between Danny and Jenko.
The background to that incident, according to JG's statement, is that she and Mr Jenkin were arguing about the complex interpersonal relationships within the household.
While JG says that the incident went on for something like five hours, and that she was subject to terrifying threats and abuse and awful violence, there is no allegation that JG was detained against her will and no suggestion that she ever tried to leave. In fact, the statement on its face indicates that JG told the accused "I ain't going anywhere until you're out of here."
In considering whether the proposed tendency evidence has significant probative value I considered the definition of "probative value" in the dictionary to the Evidence Act and what fell from the majority of the High Court in the judgments in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 in particular at [44], [46], [54], [61] (French CJ, Kiefel, Bell and Keane JJ) and [103] (Gaegler J).
A majority of the High Court in Hughes v The Queen [2017] HCA 20; 92 ALJR 52 determined that the degree of similarity between the conduct subject of the charge faced by the accused and the proposed tendency evidence is not a determinative, or in some cases significant, factor. Kiefel CJ, Bell, Keane and Edelman JJ said at [37]:
"a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it."
At [39], their Honours went on:
"Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence."
The issue in the present trial is such that it is not incumbent on the prosecution to establish that the individual pieces of tendency evidence have any particular similarity to the allegations giving rise to the murder charge. However, I do not read the decision in Hughes as authorising the admission of evidence which does little more than establish (if accepted) that the accused is a violent man. Nor can I accept that the evidence in paragraphs 12-14 of JG's evidence has "significant probative value" in view of the issues in the case, the tendencies identified in the notice and having regard to the other evidence that has been, and is expected to be, adduced in the trial.
As I have said the tendency identified in the notice is "to detain persons and to intimidate and physically assault them."
In the course of oral arguments, the Crown Prosecutor made the following submissions:
"The Crown submits it is evidence as to the tendency to detain and to be violent. The evidence of the witness was that drugs were being consumed just before this, and then the account was given in those paragraphs which is consistent with violence, unprovoked violence and threats which the Crown says is consistent with the tendency. This is at a time relevant in time, post, shortly after the allegation of what has occurred in respect of Mr Dower, because there's evidence that the conversations that occurred about this time related to the disposal of the body. So it is post the allegations but close in time, the Crown would be submitting."
The fact that the tendency evidence arose shortly after the commission of the alleged murder does not militate against the admission of the evidence. It does not diminish its probative value. On the other hand, the fact that the accused allegedly consumed drugs at both times is not a matter that was identified in the tendency notice and is not, in any event, a matter that greatly increases the probative value of the evidence.
Important to an assessment of the probative value of the evidence is the suggestion, both in the notice and in the Crown's submissions, that the tendency relied upon includes "detaining persons." As I have said, there is no evidence in the relevant paragraphs that JG was detained. I suppose it may be that detention could somehow be inferred. However, that inference would run against what JG says was actually happening.
The incident does, if accepted, suggest a tendency towards violence and, as I have said, this is relevant to the issues to be contested in the trial. However, I do not accept that such a tendency, or the evidence sought to be led from JG, has significant probative value for the purpose of s 97of the Evidence Act.
It is for those reasons that I excluded the evidence.
[2]
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Decision last updated: 18 May 2018