R v Jenkin and Ors [2018] NSWSC 547

R v Jenkin and Ors [2018] NSWSC 547

The application for severance of counts 2 and 3 from the murder count is refused because the risk of prejudice from admissible tendency and other evidence can be adequately managed with appropriate judicial directions. However, the application for a separate trial for Mr Jenkin, apart from Mr Cowan, is granted because the volume and nature of inadmissible and highly prejudicial material from Mr Cowan, particularly as to Mr Jenkin's character and version of events, is such that no direction could adequately cure the resulting unfairness.

Parties
Prosecution: Regina; Accused: Mark Kenneth Jenkin; Accused: Stuart Cowan; Accused: Paul William Turner
Jurisdiction
Australia
Judgment Date
30 April 2018
Procedural Posture
Criminal / Pre Trial Application (ruling on Severance and Separate Trials)
Outcome
Severance of counts 2 and 3 refused; Mr Cowan to be tried separately from Mr Jenkin; joint indictment to be withdrawn and new indictment to be presented against Mr Cowan in the District Court.
Legal Topics
Severance of Counts, Separate Trials, Prejudicial Evidence, Tendency Evidence, Conspiracy to Murder, Murder, Soliciting to Murder a Witness
Criminal Law Severance of Counts Separate Trials Prejudicial Evidence Tendency Evidence Conspiracy to Murder Murder Soliciting to Murder a Witness

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Parties

Regina

Prosecution

Mark Kenneth Jenkin

Accused

Stuart Cowan

Accused

Paul William Turner

Accused

Procedural Posture

Criminal / Pre Trial Application (ruling on Severance and Separate Trials)

Legal Issues

  1. 1 Whether counts 2 and 3 (conspiracy and solicitation to murder a witness) should be severed from count 1 (murder) in the indictment
  2. 2 Whether Mark Kenneth Jenkin should be tried separately from Stuart Cowan
  3. 3 Whether the risk of prejudice from prejudicial and inadmissible evidence can be cured by judicial direction

Ratio Decidendi

The application for severance of counts 2 and 3 from the murder count is refused because the risk of prejudice from admissible tendency and other evidence can be adequately managed with appropriate judicial directions. However, the application for a separate trial for Mr Jenkin, apart from Mr Cowan, is granted because the volume and nature of inadmissible and highly prejudicial material from Mr Cowan, particularly as to Mr Jenkin's character and version of events, is such that no direction could adequately cure the resulting unfairness.

Court Disposition

Severance of counts 2 and 3 refused; Mr Cowan to be tried separately from Mr Jenkin; joint indictment to be withdrawn and new indictment to be presented against Mr Cowan in the District Court.

Orders

  • Application for severance of counts 2 and 3 refused.
  • Order that Stuart Anthony Cowan be tried separately from Mark Kenneth Jenkin.