R v Jenkin and Ors

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.

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.

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Judgment (8 paragraphs)

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