el:
Mr M Fox (Crown)
Mr P Lowe (Jenkin)
Mr R Driels (Cowan)
Mr P Young SC (Turner)
[2]
Solicitors:
Director of Public Prosecutions NSW (Crown)
O'Brien Solicitors (Jenkin)
Zahr Partners (Cowan)
Blair Criminal Lawyers (Turner)
File Number(s): 2015/00345562 (Jenkin)2015/00344527 (Cowan)2015/00345486 (Turner)
[3]
Judgment
By notice of motion filed 23 October 2017 Mark Kenneth Jenkin sought orders for separation of his trial from two co-accused (Paul William Turner and Stuart Anthony Cowan). He also sought severance of count 1 (alleging the murder of Mark Dower) from counts 2 and 3 (alleging conspiracy and solicit to murder a witness Rachael Silvester). The trials were listed to commence today (Monday 30 April) but for reasons of no present relevance there was a delay in hearing the application for severance and separate trials. The Crown filed written submissions and articulated its position on the various applications on 9 April 2018. The applications were heard on 13, 20 and 24 April 2018. Due to the proximity of the trial date, this judgment has been prepared somewhat hurriedly and the reasons must necessarily be brief.
The Crown case is that Mr Jenkin and Mr Turner murdered Mark Dower at some time between 18 March and 17 April 2015. These are the dates nominated in the indictment notwithstanding I was told that Mr Jenkin was in custody from 8 April 2015: Transcript 24 April 2018 p 61. On the Crown case, Mr Dower was detained for a number of days at Mr Jenkin's flat at Mangerton. The body was hidden in a surfboard bag and placed in a common laundry area. On 16 April 2015 there was a report to Crime Stoppers and police located the body later that night. It seems that Mr Jenkin was not immediately a suspect and was not charged until 24 November 2015. However, Mr Jenkin was in custody in relation to unrelated matters in July and August while the police investigation proceeded. The Crown case, based on intercepted telephone calls from gaol, is that Mr Jenkin solicited Mr Cowan to murder a potential witness (Rachael Silvester). The pair are charged with conspiracy to murder Ms Silvester (count 2) and Mr Jenkin is charged with soliciting Mr Cowan to murder Ms Silvester (count 3).
On 6 July 2017, the Director of Public Prosecutions made an application for an exemption under s 128(2) of the Criminal Procedure Act 1986 (NSW) to have Mr Cowan's matter dealt with in the Supreme Court. In doing so, the Director made an undertaking to withdraw the joint indictment if there was a successful application for a separate trial. Mr Jenkin took no position on the s 128 application but reserved his right to make a separate trial application. The Chief Justice granted the exemption under s 128(2) on the basis of the undertaking made by the Director.
In the course of the pre-trial hearing, a number of other issues were foreshadowed and/or ventilated. These included a proposed application for a trial by judge alone and a substantial argument relating to tendency evidence that the Crown seeks to tender against Mr Jenkin on the murder charge. The delay in bringing these significant and time consuming pre-trial issues to the attention of the Court is unsatisfactory but is explained by difficulties that Mr Jenkin's solicitors had in securing the services of counsel. The evidence shows that four barristers accepted instructions and then, for various reasons of no present moment, returned the brief. Mr Lowe, who currently appears, was not retained until 5 April 2018.
As to Mr Jenkin's application for a separate trial from Mr Turner, Mr Turner did not oppose the order. [1] The Crown conceded that such an order was appropriate. Its written submissions said:
Severance of JENKIN from TURNER
The Crown consents to the trial of Paul William TURNER being separated from the trial of the applicant Mark Kenneth JENKIN.
It is submitted that it is in the interests of justice for the trials of JENKIN and TURNER to be heard and determined separately for the following reasons:
(i) As set out in Para 10 (a)-(f) of the separate trial application, it is conceded that there is evidence admissible against TURNER that is not admissible against JENKIN that could be deemed to be prejudicial to JENKIN.
(ii) The volume and the nature of the evidence admissible against JENKIN is substantially different and far more extensive than that against TURNER and includes significant tendency evidence and context evidence that is totally irrelevant to the case against TURNER.
(iii) The case against TURNER is weaker than that against JENKIN. R v. Baartman NSWCCA 6/10/1994 adopting the statement from Hunt CJ at CL in R v. Middis Unrep 27/3/1991
(iv) A separate trial for TURNER would involve the calling of far fewer witnesses and evidence and occupy significantly less court time and resources as would the trial of JENKIN. Accordingly the ordering of separate trials for JENKIN and TURNER would not significantly breach the public interest in the efficient disposal of trials.
On 13 April 2018, in accordance with this concession and on the joint application of the parties, I made an order for separation of Mr Turner's trial. His trial on the charge of murder is to follow the trial of Mr Jenkin (be it on all charges or just count 1, held jointly with Mr Cowan, or otherwise).
It has never been suggested that Mr Turner might seek to be tried by judge alone and, accordingly, s 132A(2)(a) prevented any application being made by the other accused. After separation from Mr Turner, and by notice of motion filed 18 April 2018, Mr Jenkin made an application for a trial by judge alone. The affidavit in support indicated that Mr Cowan would "consent to a judge alone trial". Such consent is not sufficient for the purpose of s 132A(2)(a). That provision requires that each of the accused in a joint trial applies for a trial by judge alone. On 20 April 2018, counsel for Mr Cowan indicated that an application for a trial by judge order would be made. Directions were made that any such application was to be filed with my Associate by Monday 23 April 2018. On that date, an email was sent to my Associate indicating that Mr Cowan would not be making such an application. Accordingly, Mr Jenkin's application for a trial by judge alone cannot succeed.
The application for severance of counts 2 and 3 from the indictment containing count 1 ("the severance application"), and the application for a separate trial from Mr Cowan ("the separate trial application") raise similar (but not identical) legal issues. However the factual and evidentiary context is quite different. The applications are governed by the operation of ss 21 and 29 of the Criminal Procedure Act. Those sections do not purport to be exhaustive, do not lay down any comprehensive list of criteria or relevant considerations and are, on their terms, to be applied by reference to established common law principles. I have considered these principles in other cases and, rather than repeat that analysis in the limited time available to prepare this judgment, I refer to my judgments in R v Roff [2015] NSWSC 1853, R v Qaumi & Ors (No 3) (Severance and separate trial) [2016] NSWSC 15, R v Martin & Martin [2017] NSWSC 1106 and to the authorities referred to in those judgments. However, each case must be considered on its own facts and previous authorities cannot provide answers to the questions that arise in the present case.
Mr Cowan took no active role on the application but his position was not to oppose the application for a separate trial. Because he is not charged with the murder offence, he had no particular interest in the application for severance of the counts.
In each instance, the starting point seems to be that the cases would be heard together. That is, in the case of the severance application, it would ordinarily be the case (and makes sense) that the allegation of murder be tried together with the allegation that Mr Jenkin attempted to arrange for the execution of one of the witnesses now relied on by the prosecution to prove the murder. At the time of the acts giving rise to the soliciting and conspiracy charges, Mr Jenkin was not charged with the murder offence. It will be at least open to the prosecution to prove that Mr Jenkin may have seen himself as a suspect or person of interest in the investigation into Mr Dower's death. Such evidence is admissible to establish motive and to provide context to the conversations that lead to the charges in counts 2 and 3. To do that, the Crown would be permitted to adduce some, and perhaps a good deal, of the evidence it relies on to establish the murder charge. The question is whether Mr Jenkin "may be prejudiced or embarrassed in his defence" [s 21(2)(a)], whether it is in the interests of justice to sever counts 2 and 3 from the indictment [s 29(3)] or whether for any other reason it is desirable to sever those counts [s 21(2)(b)].
In the case of the separate trial application, it is generally desirable that alleged co-conspirators be tried together. [2] There are many reasons for this, not least of which is the desirability that the same jury determine the case against both men to avoid the possibility of inconsistent verdicts. [3] However, as Kirby J said in R v Patalis & Spathis, "there is a rule and there is a proviso to the rule." [4] The same questions arise under under ss 21(2) and s 29. It is necessary to consider the case against both accused men, make an assessment of the relative strengths of those cases, consider the defence each might be expected to run and to assess the possible prejudice that will arise in a joint trial. As the Crown Prosecutor properly conceded, in this instance there is potential prejudice arising from things said by Mr Cowan to the police. The question is whether such prejudice is capable of being cured by direction.
I will adopt the approach of counsel for Mr Jenkin and deal with the severance application first, although in some ways the two applications have to be considered together as the determination of one may impact on the force of the arguments relating to the other.
[4]
Application for severance of counts 2 and 3 from count 1
The application for severance of counts 2 and 3 from the murder count is based on a number of contentions.
The first is that the case on counts 2 and 3 is significantly stronger than the case in relation to count 1. This is often a relevant consideration in determining whether to separate the trials of two accused people. [5] It is also a relevant consideration in determining an application to sever counts. If the case in relation to one count is particularly strong, it may distract the tribunal of fact from weaknesses in the prosecution's case in relation to the other counts. On the other hand, a jury will readily understand a direction that each count must be determined by reference to the evidence admissible in respect of that count. On my assessment of the evidence at this preliminary stage, I am not satisfied that there is any significant difference in the strength of the case in respect of the various offences and, to adopt the words of Hunt J in Middis, it could not be said that the case in relation to the conspiracy and solicit charges is "immeasurably stronger" than the case in relation to the murder. [6] In making that assessment, I am conscious of the difficulties that will confront the Crown on the issue of causation and on the importance of the opinion of the forensic pathologist Dr Duflou (who is expected to be a defence witness). I have also considered the fact that the defence to the murder charge appears to be known - Mr Jenkin's case is that Mr Dower was not detained against his will but was at his premises trying to "detox" from drugs and fell and hit his head. By contrast, it is not known what Mr Jenkin's case will be in relation to counts 2 and 3. Even so, the relative strength of the Crown case on each count is not a consideration of itself that would lead to the severance of counts that should otherwise be heard together.
It was also submitted that the jury, in considering counts 2 and 3, may be unduly influenced by tendency evidence and other evidence of criminal conduct on the part of Mr Jenkin that the Crown will seek to adduce on the murder charge. The Crown acknowledges that this evidence only goes to the murder charge and that the jury will need to be directed as to the limits on its use. At this point, the parties are still discussing the precise content of the tendency evidence. These discussions came too late but, again, this is because counsel was not briefed until the beginning of this month. For the purpose of considering this aspect of the application, I proceed on the basis that at least some, and possibly a good deal, of this type of evidence will be admitted in the trial. It is particularised in a tendency notice (Ex VD-1) and in an affidavit of Mr Jenkin's solicitor dated 18 April 2018 (at paragraph 59). In the course of argument, the Crown indicated that it would not rely on all of the evidence enumerated in the affidavit and, as I said, counsel is still discussing exactly what evidence will be led. It may also be that I am called upon to make rulings on the admissibility of this evidence.
Nevertheless, it is safe to assume that there will be a good deal of evidence outside of the facts of this case that will tend to show that Mr Jenkin has committed other offences and might be considered to be a person of bad character. It will be necessary to provide the jury with clear direction as to the proper use of this evidence and the need to decide the case on each count separately and by reference to the evidence admissible on that count.
The next matter raised on the severance application requires a decision, at least on a provisional basis, of whether the prosecution can rely on the 'phone calls upon which the conspiracy and solicit charges are based as evidence demonstrating a consciousness of guilt in relation to the murder charge.
Mr Lowe submitted that even if it is accepted that Mr Jenkin took steps to do harm to Ms Silvester, evidence establishing that fact could not establish a consciousness of guilt in respect of the murder charge. That is because there are other possible explanations for the conduct, including other possible offences to which any consciousness of guilt might attach. For example, it was submitted that the conduct could be explained by reference to Mr Jenkin's role in hiding the deceased's body or, as it was put in argument, interfering with his corpse. The evidence of Ms Silvester is equally relevant to that conduct. It might also be said that the any consciousness of guilt evidenced by an attempt to interfere with evidence could relate to culpability for homicide falling short of murder. It seems the prosecution may not be able to establish a precise act which caused death. The Crown Prosecutor said in argument that, to prove mens rea, it will rely on an alternative case of reckless indifference to human life. In those circumstances, the possibility that Mr Jenkin is guilty of manslaughter may arise. The argument is that the tribunal of fact could not reasonably attribute any consciousness of guilt to a charge of murder, as opposed to some lesser charge.
A similar issue arose in the case of R v Brooks. [7] I analysed the authorities falling on either side of the debate at [30]-[38]. [8] I concluded that the evidence of post offence conduct in that case was "intractably neutral" (as between murder and manslaughter) but nevertheless admissible. I have not reached a concluded view on the admissibility of the evidence in the present case but, subject to hearing further argument, have formed a provisional view that it is admissible subject to a determination as to the extent of its use. In reaching this view, I have taken into account that it seems to be inevitable that the alternative of manslaughter will go to the jury. I say this because the Crown intends to rely on reckless indifference and if the jury is not satisfied of that matter beyond reasonable doubt, it may return a verdict of guilty to manslaughter either on the basis of an unlawful and dangerous act or gross negligence. The evidence of the attempt to interfere with the evidence of Ms Silvester (by having her killed) is capable of being evidence of a consciousness of guilt of homicide, albeit that it may not be capable of being used to support the murder charge specifically.
In any event, I am satisfied that these are matters capable of being cured by direction, even if I ultimately rule that the evidence cannot be used to support a consciousness of guilt.
[5]
Conclusion on severance application
I have considered the cumulative impact of these matters and the other matters raised on Mr Jenkin's behalf in seeking severance of counts 2 and 3 from the murder charge. I accept that there is a danger of impermissible and prejudicial use of evidence that is admissible on one count but not on the others. However, I am satisfied that these dangers are capable of being cured by direction. Assuming the matter proceeds before a jury, clear and firm direction will be capable of ensuring that the jury deals with each count separately and uses only the evidence admissible on the particular count it is considering. Further, it is critical to an understanding of the telephone calls upon which the conspiracy and soliciting charges are based to appreciate the evidence implicating Mr Jenkin in the murder of Mr Dower. Again, clear direction will ensure the evidence is used for this limited purpose and not misused in a prejudicial or irrational manner.
For those reasons, the application for severance of counts 2 and 3 from the indictment will be refused.
[6]
The separate trial application
On the other hand, I am satisfied that Mr Jenkin has made good his argument that his trial should be separated from the trial of Mr Cowan. I reach that conclusion in spite of the obvious and well-established advantages in people alleged to be co-offenders, particularly those charged with conspiracy, being tried together. However, this is not a case where the major offence charged against each accused is the same. The fact is that:
1. the evidence to be led in Mr Cowan's case is quite confined by comparison to the evidence to be adduced against Mr Jenkin,
2. there are substantial differences in the case to be presented against the two accused men, and
3. there is a body of evidence to be led in Mr Cowan's case that is extremely prejudicial to Mr Jenkin and which is not admissible against him. There is a cumulative impact in the eliciting of prejudicial evidence. I have already referred to the fact that the Crown will tender a body of tendency evidence and other evidence of uncharged criminal acts in its attempt to prove its case against Mr Jenkin. I have also referred to the need to direct the jury carefully about the use of parts of the evidence in proof of counts 1 but not counts 2 and 3 (and vice versa). The material in Mr Cowan's interview and in other recorded conversations to which he was a party tips the scale substantially in favour of ordering separate trials. I am unable to contemplate any direction to the jury that would cure the unfairness of this accumulation of prejudicial material.
I will deal with these matters briefly and in turn.
The case against Mr Cowan is quite confined. It essentially involves playing the recordings of telephone calls in which he and Mr Jenkin discussed giving the witness Ms Silvester a "hot shot", playing some telephone calls and proving other steps he took in furtherance of those discussions, and tendering his recorded interview with police and intercepted calls in which he participated after his arrest. I do not suggest this encapsulates all of the evidence, but those matters appear to constitute the essence of the case against him. Mr Cowan's trial, prosecuted separately, is likely to be quite short. Prosecuted jointly with Mr Jenkin's murder case, it has an estimate of 6 weeks.
The cases against the two men are very different. The most obvious difference is that Mr Jenkin faces the more serious charge of murder. The prosecution will call many witnesses in proof of that allegation and the issues that arise are potentially complex and difficult. As I perceive it, Mr Jenkin's case is that Mr Dower was staying at his flat to try to "detox" from drugs and that he fell and hit his head whereas the prosecution will allege that he was holding the deceased against his will for financial (and perhaps psychological) advantage. Mr Jenkin intends to call a forensic pathologist and contend that the cause of death is not known and that he committed no act that caused the death. In relation to counts 2 and 3, the prosecution will rely on the evidence of motive arising out of the allegation that Mr Jenkin was responsible for Mr Dower's death. The motive in Mr Cowan's trial, as I understand it, is loyalty to Mr Jenkin (his stepbrother) and, more significantly for present purposes, his fear of Mr Jenkin. In Mr Cowan's trial, there will be evidence of the things he said to police, including admissions as to the meaning of the words used in the crucial telephone calls. In Mr Jenkin's trial, the Crown will rely on the inferences to be drawn from the words used. My assessment of the Crown Case statement and the other evidence tendered on the pre-trial hearing suggests that the cases against the two men are very different.
The third matter concerns things said by Mr Cowan that are potentially prejudicial to the fair trial of Mr Jenkin and not admissible against him. On 23 November 2015, the date on which the conspiracy charged in count 3 came to an end, police interviewed Mr Cowan. Contrary to an initial submission by the Crown (which was withdrawn), there is no basis upon which the answers given in the interview are admissible against Mr Jenkin. In considering the substance of this evidence, it is important to bear in mind that the two accused are stepbrothers. Counsel for Mr Cowan indicated that there was no objection to this interview and the inference seemed to be that it would be relied on in his defence. There seemed to be no basis upon which the more prejudicial aspects of the interview could properly be edited. Without pretending to be comprehensive, the interview contains the following statements and opinions adverse to Mr Jenkin:
"My brother's psychotic" (Q 169, 447-448).
Mr Jenkin "believes his own bullshit" (Q 169, 447-448).
Mr Cowan was intimidated by Mr Jenkin (Q 599).
Mr Jenkin owned a gun that he obtained through a break and enter (Q 207).
Mr Jenkin was connected with, or in some kind of dispute with, "bikies" (Q 164, 207).
That what Mr Jenkin told him about the death of Mr Dower (that he fell in the bath and hit his head on the hand rail was "bullshit") (Q 169) although he later said he thought the story was "plausible" and that he believed it at the time (Q 179).
There was questioning about the version of events given by Mr Jenkin as to Mr Dower's death (that is, the fall in the shower) including questions tending to undermine that version of events (Q 180-189, 254).
Mr Jenkin's "substance of choice" was "crystal meth" which "fuck's with people's heads" (Q 248-249).
Mr Jenkin asked him to bring drugs into the gaol (Q 273-275, 474).
Mr Jenkin assaulted him in the past causing "black eyes, fucken busted lips" over "a little fucken disagreement" (Q 685).
Mr Jenkin was a "compulsive liar". Again, this observation was made in the context of Mr Cowan being asked whether Mr Jenkin's version (that the deceased hit his head in the bathroom) was "anywhere near the truth" (Q 706).
There is also evidence in Mr Cowan's case, but not admissible in Mr Jenkin's trial, of conversations Mr Cowan had with other people when he was in custody after being charged. These include:
In a conversation with his stepfather on 15 December 2015, there was a discussion about hearing from other people that "Mark was responsible". Mr Cowan said "Mark told me his psychotic side of the story".
In a conversation with his mother on 24 December 2015, Mr Cowan was asked "did he intimidate you into doing anything at all?" and Mr Jenkin was described as "a bit of a standover merchant" and "a crazy one".
In a call with his stepfather on 28 January 2016, Mr Cowan said he told the police things that Mr Jenkin told him to say and said "that's his story now I guess". In later calls with his stepfather (on 4, 6 and 11 February 2016), both men say that Mr Jenkin "believes his own story" or "his own bullshit", that "he's full of shit" and that what he told his father was "bullshit". These appear to be references to the very case that I understand that Mr Jenkin will run at his murder trial, that is, that Mr Dower fell and hit his head in the bathroom and that this was the cause of his death.
In a statement to the police, Ken Jenkin (the father of Mr Jenkin and stepfather of Mr Cowan) referred to conversations he had with Mr Cowan. This included the exculpatory version provided by Mr Jenkin but, in a subsequent 'phone call, Mr Cowan is reported to have said "That stuff I told you from Mark, forget about it, it's all bullshit, it's a figment of Mark's psychotic imagination."
There is also evidence admissible against Mr Cowan that goes to his interpretation of what Mr Jenkin was asking him to do in the critical 'phone calls. He was asked a number of questions by investigators as to his interpretation of the calls. Some of this is in the nature of cross-examination and discloses the police officers' opinion (which are plainly irrelevant) as well as Mr Cowan's understanding of what was said. This is important evidence against Mr Cowan but it cannot be admitted against Mr Jenkin. In the latter's case, the Crown must rely on circumstantial evidence to invite the jury to draw an inference as to what was being communicated. The tribunal of fact will be required to make the same factual determination but based on different bodies of evidence. In this sense, the case is analogous to the case of R v Pham where the Court held it would difficult for the jury to make an assessment of the credibility of particular witness in one case (where it was corroborated) and then put aside that assessment in the co-accused case (where it was not supported by other evidence). [9] The analogy with Pham is not perfect but similar considerations arise. Even given clear instruction, it would be difficult for a jury considering Mr Jenkin's case on counts 2 and 3, to disregard any findings it makes as to the meaning of the telephone calls with the aid of Mr Cowan's opinions provided to the police in his interview.
This is not a typical case of a "cut-throat defence" where two people charged with the same offence seek to blame the other. In such cases, it is generally accepted that it is most appropriate, although not universally the case, that the co-accused should be tried together. [10] The rationale for that general rule is the avoidance of inconsistent verdicts and the desirability that the same jury consider the competing versions of events. In the present case, Mr Cowan is not charged with the most serious offence charged against Mr Jenkin. However, the evidence to be tendered in his case, and in some instances (such as his fear of Mr Jenkin) relied on by him to justify his actions, tends to support the Crown case of murder. Unless Mr Cowan gives evidence, Mr Jenkin will have no opportunity to test the assertions.
Further, the pejorative opinions provided as to Mr Jenkin's character - for example, that he is violent, psychotic, a liar and a stand-over man - will provide unfair and inadmissible support for other evidence to be tendered by the Crown against Mr Jenkin as part of its tendency case. It is difficult to imagine a direction that will overcome the subliminal and prejudicial impact of such evidence emanating from the accused man's own stepbrother. While the Crown may be permitted to lead some aspects of this evidence from other witnesses as part of a tendency case or a necessary part of the narrative, that evidence can be tested. The assertions of Mr Cowan cannot.
I have applied the authorities of the High Court and the Court of Criminal Appeal stressing the robustness of juries and judicial acceptance that juries will follow the directions of the trial judge. [11] Those authorities played a significant (although not determinative) role in my decision that the severance application should be refused. However, the cumulative impact of the prejudicial material is of significant concern. If the jury hears the kind of evidence to be adduced in Mr Cowan's case, I have no confidence that judicial direction could cure the substantial and unfair prejudice that would result.
[7]
Endnotes
MFI VD-1.
See, generally, The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32 and Webb and Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30 at [88]-[89] (Toohey J, with whom Mason CJ and McHugh J agreed on this point), contra at [80] (Deane J).
Webb and Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30 at 89.
R v Patalis & Spathis (No 1) [1999] NSWSC 649; (1997) 107 A Crim R 432 at [6].
See for example R v Middis (Supreme Court (NSW), 27 March 1991, unrep). See also R v Pham [2004] NSWCCA 190.
R v Middis (Supreme Court (NSW), 27 March 1991, unrep) at 1 (Hunt J).
R v Brooks [2017] NSWSC 188 at [26]-[43] (Hamill J).
R v Cook [2004] NSWCCA 52, R v Sievers [2004] NSWCCA 463; (2004) 151 A Crim R 426, Steer v R [2008] NSWCCA 295; (2008) 191 A Crim R 435, Gall v R [2015] NSWCCA 69, Mulvihill v R [2016] NSWCCA 529, R v Ciantar (2006) 16 VR 26; [2006] VSCA 263, Baden-Clay v The Queen [2016] HCA 35; 334 ALR 234 and R v White [1998] 2 SCR 72.
R v Pham [2004] NSWCCA 190 at [6] (Hulme J) and [33]-[34] (Adams J).
Webb and Hay v The Queen at 88-89, R v Fernando & Anor [1999] NSWCA 66.
See, for example, Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31] (McHugh J), The Queen v Glennon (1992) 173 CLR 592 at 614-615 and R v Jamal (2008) 72 NSWLR 258; [2008] NSWCCA 177 at [19].
Criminal Procedure Act, s 29(3).
[8]
Amendments
02 May 2018 - Publication restriction lifted
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Decision last updated: 02 May 2018
For those reasons, I have concluded that it is in the interests of justice that Mr Cowan be tried separately from Mr Jenkin. [12] Accordingly, I will make an order that Mr Cowan be tried separately from Mr Jenkin.
The result of that order, in accordance with the exemption made by the Chief Justice under s 128(2) of the Criminal Procedure Act and the undertaking made by the Director of Public Prosecutions, is that the joint indictment will be withdrawn and the Crown will present an indictment containing the count against Mr Cowan in the District Court. To facilitate that process, I propose to adjourn the trial of Mr Cowan for a period of two weeks.
For the foregoing reasons I make the following orders:
1. Application for severance of counts 2 and 3 refused.
2. Order that Stuart Anthony Cowan be tried separately from Mark Kenneth Jenkin.
3. In accordance with the Chief Justice's exemption under s 128(2) of the Criminal Procedure Act and the undertaking of the Director of Public Prosecutions the joint indictment is to be withdrawn and an indictment against Stuart Anthony Cowan to be presented in the District Court.
4. Adjourn the proceedings against Stuart Anthony Cowan for mention on Monday 7 May 2018 at 9.30am.
5. Subject to further pre-trial applications, the trial of Mark Kenneth Jenkin is to commence on Wednesday 2 May 2018.