R v Jenkin (No 18) (Verdict)

1. [1]

   Late on 16 April 2015, the decaying corpse of Mark Dower was found secreted inside a surfboard bag in an external laundry of a large residential housing estate at Crana Place, Mangerton. The timing and cause of Mr Dower’s death is controversial. Similarly, the circumstances in which he came to be hidden in this inauspicious place, and left there to rot, is disputed. On 24 November 2015, Mark Kenneth Jenkin was charged by police with Mr Dower’s murder. He was also charged with conspiracy to murder RS, a person who the prosecution says assisted Mr Jenkin to hide the body in the laundry.

2. [2]

   On 2 May 2018, Mr Jenkin was arraigned in the Supreme Court sitting in Wollongong on three counts. The first alleges that he murdered Mr Dower some time between 18 March 2015 and 9 April 2015. The second count is the conspiracy to murder RS. The third count, couched as an alternative to the second, is that he solicited Stuart Cowan to murder RS. Mr Jenkin pleaded not guilty to each charge. Accordingly, it is for the prosecution to prove Mr Jenkin’s guilt and to do so beyond reasonable doubt.

3. [3]

   The day before the arraignment, on the application of Mr Jenkin and with the consent of the Director of Public Prosecutions, I made an order under s 132 Criminal Procedure Act 1986 (NSW), that Mr Jenkin be tried by Judge alone. [1] Section 133(1) provides that my verdict will have the same effect as a jury verdict and that I may make any finding that could be made by a jury. Section 133(2) mandates that I record the relevant principles of law and the findings of fact on which I rely. Section 133(3) provides that I must take into account any warning that would be given to a jury.

4. [4]

   The overriding legal principle by which this judgment is guided is that the prosecution must prove Mr Jenkin’s guilt and must do so beyond reasonable doubt. While it is not required to prove each disputed fact to that standard, it must prove the essential elements of any particular charge beyond reasonable doubt before a verdict of guilty can be returned in respect of that charge. If there is any reasonable doubt in relation to any element, I must find Mr Jenkin not guilty. Even if I think it is more likely than not that he is guilty, or if the evidence leads me to believe strongly that he is guilty, I must give Mr Jenkin the benefit of any reasonable doubt that I have in relation to his guilt. The standard of proof is extremely high, perhaps the highest standard ever devised by any legal system in history.

5. [5]

   Where as here, the prosecution relies on a circumstantial case, the Crown must exclude any reasonable inference or hypothesis consistent with Mr Jenkin’s innocence (or, I suppose more correctly, a hypothesis inconsistent with his guilt).

6. [6]

   There is no dispute that Mr Dower spent the last five or so days of his life in Mr Jenkin’s flat. However, the circumstances in which he was staying there and what happened to him during that period are hotly contested.

7. [7]

   The prosecution case is that Mr Dower was detained in Mr Jenkin’s flat in Unit 13 of 4 Crana Place at Mangerton. It alleges that Mr Jenkin assaulted him, intimidated him and used his cash card to withdraw money, or attempt to withdraw money, from automatic teller machines (ATM) in various local businesses including Metro Petroleum and the Crown Convenience store. The prosecution case is that a number of injuries observed on post mortem examination were caused by assaults committed by Mr Jenkin. It contends that the severity of the assaults, evidenced by the nature and extent of the injuries, gives rise to an inference that Mr Jenkin intended to inflict grievous bodily harm upon Mr Dower. Mr Dower became weak and needed medical treatment. No such treatment was provided and the Crown contends that this supports a conclusion that Mr Jenkin acted (or failed to act) with reckless indifference to human life. The Crown case is that Mr Jenkin and the witness RS later moved the corpse from his apartment to an external laundry in the housing complex.

8. [8]

   In relation to the conspiracy (and alternative solicit) charge, the Crown case is that Mr Jenkin was in custody during the currency of the police investigation into the death of Mr Dower. In the course of two telephone calls made from gaol, he entered a criminal agreement with his brother (Stuart Cowan) to murder RS. He solicited Mr Cowan to obtain heroin and to give RS a “hot shot” (which the evidence suggested is an overdose of heroin) designed to kill her. The motive was to stop RS from talking about what she had seen in Mr Jenkin’s unit and the movement of Mr Dower’s body. Mr Cowan agreed to carry out the plan and the prosecution relies on evidence that he took steps to find RS and to obtain heroin from a local drug dealer.

9. [9]

   There is no onus of proof on the accused. He is not required to establish anything to any particular legal standard. While he ran a positive case through the prosecution witnesses and by giving evidence and exposing himself to cross-examination, the onus of proof remains on the prosecution. It never shifts.

10. [10]

    His case is that Mr Dower was an alcoholic and was staying in Mr Jenkin’s unit as a matter of choice and to avoid being assaulted by other people who lived nearby. He was not detained, assaulted or intimidated, at least not by Mr Jenkin. He often fell over and was assaulted by other local residents. Any injuries occasioned before he died were the result of falls or assaults committed by others. Mr Jenkin said he observed a number of injuries on Mr Dower when he brought him home from Jodie Pike’s unit. Mr Dower told him that Mr Pike had assaulted him. Mr Dower was at Mr Jenkin’s flat for around five or six days. During that time, Mr Dower had a number of falls. At one stage he fell flat on his face in the presence of Mr Jenkin and two or three other people. Most significantly, very shortly before he died, Mr Dower had an awkward and heavy fall in the bathtub and appeared to have struck his head on a hand railing within the bathtub. He died within about half an hour of this fall, during which time Mr Jenkin performed CPR including forceful chest compressions.

11. [11]

    The defence case is that many of the injuries observed at the autopsy may have resulted from the treatment of the body after Mr Dower’s death. There was peculiar evidence, or a suggestion, that RS told people that she had punched the body after death. More convincingly, there was evidence (in both the prosecution case and the defence case) that the body was dropped (either deliberately or accidentally) out of a window from the first floor of Mr Jenkin’s flat. Mr Jenkin’s attempt at CPR may also have caused some of the rib fractures observed on post mortem examination.

12. [12]

    In short, Mr Jenkin did not do any act that caused death and did not act with an intention to inflict grievous bodily harm.

13. [13]

    As to the alternative basis of liability for murder – reckless indifference to human life – and the alternative charge of manslaughter, it was at one stage submitted that he did not owe any relevant duty of care recognised by the law. This submission was not made in the final address but it remains a matter that the Crown must establish beyond reasonable doubt. In addition to the fact that he did not commit any act of violence or otherwise mistreat Mr Dower (on the contrary, he was nursing him), he did not foresee the probability of death resulting from Mr Dower’s deteriorating condition. Further, Mr Dower did not want to be taken to a hospital because he had, in the past, been subjected to involuntary admissions to mental institutions, including being subjected to electro-shock therapy.

14. [14]

    As to the offence of conspiracy to murder, and soliciting Mr Cowan to murder, Mr Jenkin’s case is more opaque. As I understood this part of his evidence, he suggests that he was taking a lot of drugs in gaol and was rambling when he said the things recorded in the telephone calls. He had no intention that Mr Cowan should act on the suggestion that Mr Cowan give RS a hot shot, let alone that she should be killed. He said that, if he wanted to “dispose of” RS, he would have done it himself. [2]

15. [15]

    The Crown does not have to establish the truthfulness or reliability of any or all of its witnesses. Nor does it have to establish its version of the numerous factual disputes that arose in the course of the trial. The evidence must be considered as a whole. However, it is wrong to approach the case on the basis that I prefer the evidence of the Crown witnesses to that of the accused. The Crown must establish its case beyond reasonable doubt. To do this, it must establish beyond reasonable doubt the legal elements of the particular offence under consideration.

16. [16]

    In relation to the murder of Mr Dower, [3] the Crown must establish the following elements or ingredients beyond reasonable doubt:

    1. (1)

       The death of Mr Dower.

    2. (2)

       That his death was caused by the voluntary act, acts or omission of the accused.

    3. (3)

       That the act or acts were done with intention to inflict grievous bodily harm (the Crown concedes it cannot prove an intention to kill Mr Dower). Or;

    4. (4)

       That the act(s) or omissions were done with reckless indifference to human life. This means that the accused realised that Mr Dower’s death was the probable consequence of his act or omission, but continued to do the act or omission (that is, he failed to act). [4]

17. [17]

    If the prosecution fails to prove that the accused is guilty of murder, there is a possible alternative verdict of manslaughter. The Crown contends that manslaughter might arise in two ways. The first is that the accused caused the death of Mr Dower by committing an unlawful and dangerous act. Secondly, it says that the accused is guilty of manslaughter by gross or criminal negligence.

18. [18]

    To prove manslaughter by unlawful and dangerous act, [5] the prosecution must prove:

    1. (1)

       The accused did a voluntary act (or acts) that caused Mr Dower’s death.

    2. (2)

       The act was unlawful.

    3. (3)

       The act was dangerous in the sense that it carried with it the appreciable risk of serious injury. [6]

19. [19]

    To prove manslaughter by gross or criminal negligence, the prosecution must prove:

    1. (1)

       The death of Mr Dower was caused by the voluntary act or omission of Mr Jenkin.

    2. (2)

       Mr Jenkin owed Mr Dower a duty of care.

    3. (3)

       Mr Jenkin breached that duty of care.

    4. (4)

       The nature and extent of the breach of duty – that is the departure from the standard of care expected of a reasonable person – was so gross or extreme that it was criminal in the sense that it warrants criminal punishment.

20. [20]

    In relation to the conspiracy to murder, [7] the prosecution must prove beyond reasonable doubt:

    1. (1)

       There was an agreement between Mr Jenkin and Stuart Cowan to commit the murder of RS.

    2. (2)

       Mr Jenkin participated in the agreement in the sense that:

21. [21]

    If the Crown fails to prove the conspiracy, it relies on an alternative charge of solicit to murder. [8] To establish this alternative offence, the prosecution must prove beyond reasonable doubt that the accused:

    1. (1)

       Communicated with another person, namely Stuart Cowan.

    2. (2)

       Intended to persuade Stuart Cowan to murder RS.

    3. (3)

       At the time of the communication, intended that RS would be murdered by Stuart Cowan.

22. [22]

    The prosecution case is a circumstantial one. It relies on inferences that might be drawn (reasonably and logically) from the proved facts. The legal principles I apply in assessing this circumstantial case are as follows.

23. [23]

    Unless an intermediate fact is indispensable to the chain of reasoning leading to a finding of guilt, the prosecution need not prove each individual item of evidence beyond reasonable doubt. However, if the evidence supporting the primary fact is weak, it is unsafe to draw inferences from that fact. The circumstantial case should be considered as a whole rather than on a piecemeal basis.

24. [24]

    Part of the Crown’s circumstantial case is based on “tendency evidence”. The Crown has taken the cautious approach that it must prove its tendency case beyond reasonable doubt. This is dealt with separately below.

25. [25]

    There are at least two aspects of the prosecution’s circumstantial case that are indispensable to the chain of reasoning that might lead to a finding of guilt. They are central to the resolution of the issues in the trial and the disputes between the parties. These matters must be established beyond reasonable doubt.

26. [26]

    The first is that Mr Dower died as a result of injuries deliberately inflicted upon him prior to his death, or that these injuries were a substantial or significant cause of his death. [9] The Crown must prove that the injuries were not the result of natural causes, accidental falls or other misadventure. There is a body of evidence showing that Mr Dower was an alcoholic and sometimes fell over. There are significant and difficult questions arising from the evidence of the medical experts in relation to this issue. Two matters complicate the findings found on post mortem examination. The first is the degree of decomposition of Mr Dower’s corpse. The second is the fact that a number of injuries identified by the pathologists may have been caused after Mr Dower died, either as a result of attempts to resuscitate him or because his body was dropped from Mr Jenkin’s first floor unit. Because this matter is indispensable to the chain of reasoning, it must be proved beyond reasonable doubt.

27. [27]

    The second and related issue that must be proved beyond reasonable doubt is that it was Mr Jenkin, and not somebody else, that caused the injury or injuries that caused death. There is evidence that other people, in particular a Mr Jodie Pike, assaulted Mr Dower in the weeks, and possibly days, before his death. The prosecution must exclude beyond reasonable doubt the possibility that somebody other than Mr Dower inflicted the injuries that caused Mr Dower’s death.

28. [28]

    In lawyer’s language, both of these questions concern the issue of “causation”. Causation is one of the essential elements of homicide – has the Crown established that the act (or omission) of the accused person caused the death of Mr Dower? This is “not a philosophical or a scientific question, but a question to be determined by applying [my] common sense to the facts as [I] find them, [while] appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter.” [10] The question is whether the accused’s act (or omission) caused or substantially contributed to Mr Dower’s death.

29. [29]

    The prosecution called 42 civilian or lay witnesses, mostly local residents or friends and associates of either the accused or the deceased or both, as well as 22 police officers and 5 expert witnesses. Some of the police officers were called to give expert evidence. The prosecution tendered edited statements of three civilian witnesses who died since making their statements, as well as the statements of one police officer and an employee of the ANZ bank. One of the civilian witnesses was unable to return to continue cross-examination and the Crown Prosecutor withdrew her evidence. [11] The Crown tendered 76 exhibits marked Ex A to Ex VVV.

30. [30]

    Mr Jenkin gave evidence, called one lay witness and one expert witness. He relied on parts of the evidence adduced in the prosecution case and statements obtained in the course of the police investigation. He tendered 21 exhibits marked Ex 1 to Ex 21.

31. [31]

    In reaching the factual conclusions that I will set out towards the end of this judgment, I have taken into account all of this evidence. I have not dealt with the evidence in a piecemeal fashion but have considered it as a whole. However, there are some parts of the evidence that I have disregarded altogether. This is because I have formed the view that the evidence is so unreliable that it is not safe to act upon it or because, set against the other evidence, it cannot be correct. I have not referred to every piece of evidence, or every witness, in writing this judgment.

Evidence that may be unreliable

1. [32]

   The prosecution relied on a great deal of evidence that is of a kind that the law recognises may be unreliable. If the trial was conducted before a jury, unless there was some good reason, the jury would be warned that the evidence may be unreliable and the reasons it may be unreliable. [12] I take into account such warnings in dealing with the evidence that may be unreliable. Some of the witnesses fall into more than one category of witness whose evidence may be unreliable.

2. [33]

   I have approached this evidence with considerable caution. I will deal generally with the type of evidence to which these warnings would apply and attempt to identify the witnesses to which it applies in the course of the judgment.

Hearsay: s 65(1)(a)

1. [34]

   Some of the evidence was elicited from sources other than the witness who saw, heard or perceived the event or conversation about which they gave evidence. For example, three statements were tendered from witnesses who have died. Other witnesses gave evidence of what they were told by others, including (in a number of cases) by Mr Dower himself. Hearsay evidence is generally not admissible and, when it is admitted as an exception to the hearsay rule, it must be treated with great caution because of its potential to be unreliable.

2. [35]

   Because the accused was not present, it is impossible for him or her to know whether the things asserted were in fact said and, if so, the circumstances in which they were said. The person who claims to have seen or heard the event in question cannot be cross-examined and the representation was not made under oath or affirmation. Further, there may be issues concerning the reliability of the original source of the hearsay evidence. An example is the evidence of what Mr Dower told people in the weeks before his death. While the evidence establishes that Mr Dower was a gentle and highly intelligent man, it also shows that he was an alcoholic and had a history of psychiatric illness.

Admissions: s 165(1)(a)

1. [36]

   Some of the witnesses gave evidence of things said by the accused that may amount to admissions. This evidence may be unreliable for a number of reasons. The first is that the evidence was not properly or clearly recorded. The second is that the witnesses themselves were people whose memories may have been affected by drug or alcohol use. The third is that the witnesses were not asked to recall what was said for, at least, some weeks after the conversations of which they gave evidence. Mr Riley may be an exception to that proposition. The result is that the versions of the conversations, as recorded in their police statements and later given in evidence, were likely to be a reconstruction of those conversations. The fourth is that the “Mangerton rumour mill” may have influenced or contaminated their recollection. Detective Adams agreed that the longer the investigation goes, the more likely the “rumour mill” may contaminate the witness’s version of events. [13] CA also spoke of the “rumour mill” but said “I am not here to talk about rumours”. [14] Most colourfully, DP said: [15]

2. [37]

   I accept that after Mr Dower’s body was found, rumours and scuttlebutt circulated amongst the residents of Crana Place and Myuna Way. This could have had a direct or subliminal impact on the witnesses’ recall of events.

3. [38]

   For example, there were rumours that RS may have sparred with the dead body. [16] However, neither of the people present at the time (Mr Jenkin and RS) gave evidence that this actually happened. I do not accept that it did.

4. [39]

   Another matter to consider in assessing the potential unreliability of the admissions, is that the evidence of the admissions was sometimes inconsistent with the witness’s earlier versions or in comparison with what other witnesses said.

5. [40]

   Finally, because of the nature of this evidence, it is difficult for the accused person to test the evidence or to know or understand how the evidence has been affected by the matters referred to in the preceding paragraphs.

Evidence of prison informers and those who received benefits: s 165(1)(e)

1. [41]

   Evidence of prison informers is notoriously unreliable. Such witnesses often have a motive to give evidence against the accused and their involvement in the penal system and criminal milieu often means their moral and ethical standards are different from ordinary members of the community. Juries are given strong directions about such witnesses.

2. [42]

   Michael Riley, who gave evidence of admissions allegedly made by the accused, was a witness who fell into this category. Mr Riley was clearly motivated to receive a benefit from giving evidence and was in gaol for offences of dishonesty (goods in custody, stealing). He received, or sought to receive, a reduction in his sentence as a result of the information he provided police.

3. [43]

   Other witnesses in this case, while not prison informers, are witnesses whose reliability is affected by similar considerations. Many are part of the criminal milieu or involved in the sale or misuse of drugs. Some are motivated to obtain a benefit by providing information to the police, such as a reduction in their sentence or avoidance of criminal charges that might otherwise have been laid.

4. [44]

   RS received what she called “a pardon” and was never charged with any offence arising out of her (admitted) disposal of Mr Dower’s body. The statements she made to police were “induced” in the sense that there was a promise that the information would not be used against her. She could have been charged as an accessory after the fact or other charges arising out of interfering with the corpse. She had a clear motive to give evidence adverse to Mr Jenkin.

5. [45]

   DF and SM also received “letters of comfort” from the police and received benefits for assisting the police. There were other witnesses who were clearly involved in criminal activity; drug dealing, burglaries and so on.

6. [46]

   In relation to all of this evidence, it is necessary to assess the evidence in light of the principle that it may be unreliable.

Evidence of witnesses who might have been involved in the events giving rise to the proceedings: s 165(1)(d)

1. [47]

   A number of the witnesses either were, or might reasonably be supposed to have been, criminally concerned in the events giving rise to the proceedings. This included Jodie Pike, Mark Spicer, Paul Turner, RS, AR, DF, PL and DP. In some instances the involvement was either peripheral or in the failure to disclose information to the police but the fact remains that the witnesses reliability may be affected by their own involvement in the events.

2. [48]

   People who are criminally concerned in the events giving rise to the proceedings have a motive to minimise their own involvement and to blame others. It is particularly convenient to point the finger at the accused.

Evidence that may be affected by age or mental or physical illness: s 165(1)(c)

1. [49]

   Many of the witnesses had patent mental health issues, drug addictions or health issues that may have impacted on the reliability of their evidence. Such witnesses may be unreliable and it is difficult for a tribunal of fact to determine what parts of their evidence, if any, can be relied on.

Identification

1. [50]

   One witness (Craig Maguire) gave evidence in which he purported to identify Mr Jenkin in the dock. That evidence was rejected when it came out (non-responsively) in evidence in chief. However, in cross-examination, a series of propositions were put to the effect that Mr Maguire’s assailant was not the man in the dock. Mr Maguire said that it was. He also provided a description of the person who assaulted him and this was generally consistent with the appearance of the accused. The history of the law demonstrates that identification evidence may be unreliable and is particularly dangerous and seductive when given by a witness like Mr Maguire who was a simple and damaged man, but a man clearly attempting to tell the truth. “Dock identification” is close to worthless, particularly where the witness is not very familiar with the appearance of the accused. [17] I must take into account the very strong warnings that would be given to a jury in relation to the evidence of Mr Maguire.

Particular witnesses whose evidence may be unreliable

1. [51]

   In the course of submissions made in advance of final addresses, counsel identified a number of witnesses whose evidence may be unreliable. I will set out in very brief terms the reasons I accept that this evidence may be unreliable. In some cases, I will indicate that I have disregarded the evidence. In one case, I rejected the submission that the evidence should be subject to a warning.

   1. (1)

      Jodie Pike is an alcoholic and a person who might reasonably be suspected of being involved in the events leading to Mr Dower’s death. [18] I do not accept the Crown’s submission that a warning is not appropriate because the evidence implicating Mr Pike in assaulting the deceased largely comes from Mr Jenkin. There is other evidence that he hit Mr Dower, including from Mr Pike himself, and in the form of admissions he made to others. In any event, the fact that the accused points the finger at the witness is no basis to exclude Mr Pike from the catalogue of witnesses whose evidence may be unreliable. He has a motive to downplay his own violence towards Mr Dower and to implicate Mr Jenkin. His medical condition (alcoholism) is a matter that may affect his memory and reliability.

   2. (2)

      Mark Spicer is another witness who may have assaulted Mr Dower and who is an alcoholic. [19]

   3. (3)

      Dusan Vukadinovic has a substantial history of mental illness and alcoholism. [20] There was significant detail of this in the trial and the witness was defensive about it when cross-examined. It seems he has suffered from hallucinations and grandiosity. The psychiatric issues are chronic. There is no doubt that this may affect his reliability, although there is nothing to suggest that the matters about which he gave evidence relevant to the trial were the result of hallucinations.

   4. (4)

      NB gave evidence of admissions allegedly made by the accused. Evidence of admissions may be unreliable. [21] The alleged admission was not recorded and the witness was not called upon to recount (or, more likely, reconstruct) his evidence of the relevant conversation until a long time after the events. The accused also sought a warning based on the inference that he had a mental illness because of the nature of the medication (Seroquel) he said he used to help him sleep. Other evidence in the case suggested that Seroquel is an anti-psychotic medication. While I take this into account, the matter was not really explored and there is no evidence to suggest that he was ever psychotic. He denied that the drug was taken due to problems with his “thought processes”.

   5. (5)

      Mark Lorenzetti gave evidence of what he was told by Mr Dower before the latter died. It is hearsay evidence and may be unreliable. [22] A further layer of unreliability arises due to what is known of Mr Dower. It is clear that the deceased was an alcoholic with longstanding mental health issues. He had been admitted to psychiatric institutions both in Finland and Australia. In assessing the (hearsay) evidence of what he told Mr Lorenzetti and others, it is important to take into account the potential unreliability of the person (Mr Dower) who made the assertions.

   6. (6)

      AR was a terrible witness. I wondered if he could remember his own name without clear guidance. [23] He told the Court he had taken “heaps of drugs” and judging from his performance in the witness box this was probably an understatement. There is evidence that he may have offered or agreed to move the body (and thus had some involvement in the events giving rise to the prosecution). His evidence may be unreliable. [24] I would not act on AR’s evidence unless it receives support from other evidence.

   7. (7)

      CA was a drug addict who almost certainly ransacked the premises of Mr Jenkin after the latter was in custody. [25] He had a very long criminal history for offences of dishonesty and admitted that he did an act calculated to pervert the course of justice by falsely claiming that he had committed an offence with the intention of exculpating his girlfriend who would otherwise be sent to gaol. [26] I would not act on CA’s evidence in the absence of direct supporting evidence.

   8. (8)

      RS is an important witness and her evidence must be scrutinised with considerable scepticism. She was (on her own account, but not that of Mr Jenkin) criminally concerned in the disposal of Mr Dower’s dead body. [27] She was a drug addict who used heroin at the time of the events about which she gave significant evidence. [28] She insisted on receiving an inducement before providing police with her statement.

   9. (9)

      Haralambos Chrissostomidis’ evidence may be unreliable because he is an alcoholic and some of his evidence was hearsay emanating from Mr Dower. [29]

   10. (10)

       SM was a witness involved in drugs and other criminal activity. He gave evidence of alleged admissions made by Mr Jenkin, including an important admission that Mr Jenkin told him he “gave [Mr Dower] a couple in anger” and “he fell back and hit his head on the bath.” SM received a substantial benefit for offering to give evidence against Mr Jenkin. Police provided him with a “letter of comfort” used in his sentencing hearing for unrelated criminal offences. His evidence falls into a number of categories of evidence that may be unreliable. [30]

   11. (11)

       Dale Bitton has chronic mental health and alcohol issues and his evidence may be unreliable. [31] His demeanour on the audio visual link suggested he was having some difficulties in focussing although he was a succinct and direct historian, punctuating his evidence with the imperative “Next!” [32] When the cross-examination turned to his mental health issues he said: “here we go.”

   12. (12)

       DF is a drug dealer who received a substantial reduction in her sentence as a result of her offer to assist the police in the prosecution of Mr Jenkin. [33] She was also a user of hard drugs. [34]

   13. (13)

       For reasons I will articulate when I deal with the tendency evidence, I do not propose to act on the evidence of Craig Maguire at all. In spite of his simplicity, apparent truthfulness and the dock identification elicited in cross-examination, his evidence is so potentially unreliable that I cannot properly act upon it.

   14. (14)

       Lisa Mara was a drug addict at the time and the substance and tone of her evidence suggested a deep animosity towards the accused. She had been “nobbled” by one of the police investigators who told her on the day she was to give evidence that the date of the critical incident of which she was to give evidence must be wrong (because the accused was in custody at the time she nominated in her statement). As a result, her evidence of dates was evasive and unconvincing. Further, she added significant detail (that she saw Mr Jenkin strike Mr Dower over money) that was most convenient to the prosecution case. She had never told anybody about this until two days before she was due to give evidence and then declined to make a statement about it. Her reasons for this are unclear. Her explanation for providing this evidence so late – that she happened to see a photograph of Mr Dower on a media website and this prompted a memory – was not believable. While her demeanour was quite convincing and Mr Jenkin’s denials of her evidence rather less so, I am not prepared to act on her evidence.

   15. (15)

       Paul Turner was present when Mr Dower moved from Mr Pike’s unit to that of Mr Jenkin. He was present inside the unit when a video was taken of Mr Dower in some distress. He did nothing to assist Mr Dower or obtain medical attention. He was taking heroin at the time. His evidence is potentially unreliable because he might reasonably be supposed to have been involved in the events giving rise to the proceedings and his memory may have been impacted by his drug use. [35]

   16. (16)

       I do not accept the submission that the evidence of Detective Sergeant Gregory Moon is evidence that falls into a category that the law recognises may be unreliable. He gave opinion evidence based on his expertise. Much of that evidence is not seriously in dispute – Mr Jenkin gave evidence explaining at least some of the blood stains Mr Moon identified and explained. Mr Moon made at least one significant error (identifying a defect in the paint work as a blood stain) and I have taken that into account in assessing his evidence overall. However, that error was patent and not the kind of matter that would attract an unreliability warning if the case was conducted before a jury.

   17. (17)

       Michael Riley was a prison informant who was plainly motivated to obtain a benefit from giving evidence of Mr Jenkin’s alleged admissions to him. He was provided with a letter of comfort to assist in his sentencing hearing. There are a number of bases upon which I must take into account that his evidence may be unreliable. [36] On the other hand, some of what he said was, ultimately, not in dispute and the timing of his revelations of his conversation with Mr Jenkin relative to what was publicly known at that time, suggest that his evidence may be reliable because the only possible source of the information he provided police (from his perspective) was Mr Jenkin himself. While I am guarded in my assessment of his evidence, I generally accept what he had to say.

2. [52]

   Section 165 is predicated on an application being made for a direction. However, in addition to the witnesses nominated by Mr Lowe, there a number of other witnesses whose evidence falls into a recognised category of unreliability. I do not propose to detail all of those here but I will mention a couple.

3. [53]

   Joyce Williams had lived for over 50 years in the Crana Place housing development. She was clearly giving honest evidence. However, she couldn’t hear very well at all. It was ironic then that a significant part of her evidence concerned what she had heard late at night, on the Crown case theory, from the flat of Mr Jenkin. Through no fault of Mrs Williams, there was a mild element of farce in parts of her evidence. For example: [37]

4. [54]

   Mrs Williams’ evidence ought properly to attract a strong warning that it may be affected by her health (that is, her hearing difficulties). [38] It may be that she heard a man moaning in the morning, and that this has some relevance to the issues ventilated in this trial, but insofar as her evidence relies on what she heard in the middle of the night coming from another unit and her purported voice identification of the participants, I have disregarded it.

5. [55]

   Three witness statements were tendered because the witnesses had died. These statements were from Kylie Strang, Ken Jenkin and Tracey Zonneveld. Each statement constitutes hearsay evidence and may be unreliable. The statements were not made on oath or in the presence of the accused. There was no way for the accused to test this evidence or to discover the circumstances in which the statements came to be made.

6. [56]

   Other witnesses had drug and psychological difficulties or were involved in criminal activity of various kinds.

7. [57]

   Where this kind of evidence is important to the resolution of any factual dispute between the parties, I have taken into account the kinds of warnings and directions that would be given to a jury. In every case, I have scrutinised the evidence with considerable care before making factual findings adverse to the accused.

8. [58]

   The Crown Prosecutor identified two witnesses whose evidence may be unreliable and in relation to whom he invited me to exercise caution and take into account the warnings that a jury would receive.

9. [59]

   The first was DP. He was called by the prosecution. He was a drug user, criminal and may have had some involvement in the plans to dispose of Mr Dower’s corpse. Putting aside any warning, it was obvious that he had no desire to assist the Court to arrive at the truth. I have taken into account the obvious deficiencies in his evidence in assessing the weight, if any, to be given to his testimony.

10. [60]

    Jason Rees gave evidence of a conversation that Mr Turner had with Mr Jenkin in the presence of Mr Rees and a fourth man (Nathan Hall). Mr Rees’ evidence was that Mr Turner made a statement exonerating Mr Jenkin. He said (in effect) that Mr Turner told Mr Jenkin that he had nothing to worry about because neither of them assaulted Mr Dower. Mr Turner (under cross-examination) said he heard Mr Jenkin slap Mr Dower and saw Mr Dower’s reaction. Mr Turner was not cross-examined on this alleged conversation, Mr Jenkin gave no evidence of it, and Nathan Hall was not called to give evidence. If his evidence was favourable to the Crown, it would undoubtedly be subject to a warning under s 165(1)(a) and (e). There is authority that s 165 directions can apply to evidence unfavourable to the Crown, [39] and nothing in s 165 suggests that it is restricted to warnings calculated to ensure a fair trial to an accused person. However, in view of the onus of proof, such a warning would generally be tempered to ensure fairness to the person whose liberty is at stake.

11. [61]

    In the case of Mr Rees, the problems with his evidence were patent and I have concluded that there would have been good reasons for not providing a jury with any warning. He is obviously a man with some criminal history who said that he was “disappointed” in Mr Turner for giving evidence against Mr Jenkin. Presumably, the disappointment arose from a breach of the general attitude of criminals to resist giving evidence for the prosecution. (It seemed that he was not aware that the evidence in chief was extremely confined and almost all of Mr Turner’s evidence was elicited in cross-examination). His evidence as to how he came to know at least part of the substance of Mr Turner’s evidence was not believable. [40] First he said he had read it somewhere. When asked where he read it, he said another inmate may have told him. He said this other inmate’s name was “Muzza”. It is a fact that he had been held in the Wollongong cells with Mr Jenkin over the last week or so. I did not find Mr Rees to be a very creditworthy witness. I have taken his evidence into account in assessing Mr Turner’s version of events but I cannot give it very much weight.

Conclusion on the witnesses

1. [62]

   The quality of many of the lay witnesses was poor. There were some exceptions to this. It is necessary to scrutinise the evidence with considerable care. I have approached the evidence by looking to instances where the witnesses either support each other’s testimony (in the absence of any suggestion of, or opportunity for, collusion) and to look to other evidence capable of providing support for the oral testimony.

2. [63]

   The Crown attempted to construct a case that Mr Jenkin had a number of relevant “tendencies” that made it more likely that he detained and assaulted Mr Dower. Four tendencies were identified in a tendency notice:

   1. (1)

      To act violently towards Mark Dower.

   2. (2)

      To stand over persons and intimidate them to pay him cash and to obtain sums of cash from these persons.

   3. (3)

      To detain persons and to intimidate and physically assault them.

   4. (4)

      To lock persons inside his unit if they came inside.

3. [64]

   A good deal of the evidence in support of these alleged tendencies came from witnesses with significant credibility issues.

4. [65]

   In relation to the first of the tendencies asserted (a tendency to act violently towards Mr Dower), the Crown Prosecutor indicated in the course of legal argument that it was more appropriately viewed as evidence relevant to the relationship between the men and the context in which events of March and April 2015 unfolded. I agree with this approach and counsel for the accused seemed to accept the evidence is relevant in that way. I will deal with it separately under the heading of relationship evidence, rather than under the umbrella of tendency evidence. I do not propose to use the evidence as tendency evidence although parts of it, if pressed, may have been admissible under ss 97 and 101 of the Evidence Act.

5. [66]

   In relation to the second, third and fourth tendencies asserted in the tendency notice, a question arose as to the standard of proof to which those tendencies (or the evidence relied upon to establish them) must be proved. The Crown drew my attention to authorities suggesting the question remains a vexed one. [41] In Campbell v R, the Crown accepted that that “the evidence of the facts relied upon as tendency is to be proved beyond reasonable doubt.” [42] However, Simpson J (as she then was) said at [331] that she could see nothing in the Evidence Act that justified that approach. Her Honour tended to the view that tendency evidence was like any other kind of circumstantial evidence and the individual items of evidence did not require proof to the criminal standard. However, the issue was not fully argued and neither party drew my attention to any authority where the issue has been authoritatively determined.

6. [67]

   In this trial, the Crown Prosecutor (very fairly) took the approach that before I acted on the tendency evidence, I should be satisfied of it beyond reasonable doubt. Naturally, counsel for Mr Jenkin did not gainsay this approach. While I share the misgivings of Simpson J (for much the same reasons expressed by her Honour in Campbell v R), I will adopt that cautious approach.

7. [68]

   After the evidence had closed, the Crown identified the evidence of the following witnesses upon which it relied to establish the relevant tendencies: Jodie Pike (tendencies 2, 3 and 4), Dusan Vukadinovic (tendencies 2, 3 and 4), DD (tendencies 2 and 4), RS (tendency 4), Craig Maguire (tendencies 3 and 4) and Lisa Mara (tendency 3).

8. [69]

   The evidence of these witnesses, or parts of it, was admitted as tendency evidence without objection. [43] That is, it seemed to be conceded that, if accepted, the evidence has significant probative value (s 97) and the probative value (in view of the issues in the trial) substantially outweighed any prejudicial effect it may have on the defendant (s 101). [44] I am not sure that I would have admitted all of this evidence had objection been taken. Even so, I will deal with the evidence as capable of supporting the tendencies advanced by the Crown.

9. [70]

   However, acting on the Crown’s concession as to the standard of proof, I am not satisfied that the evidence establishes beyond reasonable doubt the tendencies numbered 2, 3 and 4.

10. [71]

    As to Craig Maguire, I have no doubt he was doing his best to tell the truth. However, it would be unsafe to act on his evidence. His demeanour showed that he was a man with significant difficulties, no doubt as a result of his alcoholism (which is in remission). He gave evidence of being detained and assaulted in a unit at the Crana Place complex by a person he called “Red Doot”. There is no evidence that the accused was ever known by that nickname. Mr Maguire marked a photograph (1) in Exhibit B to indicate the flat in which he was detained. The flat he marked was not that of the accused. The Crown relies on the fact that it was in the same block (i.e. Block 4). While he provided a description that was generally consistent with the accused, and while he purported (under what was, with respect, ill-advised cross-examination) [45] to identify the accused in the dock, I am not satisfied that his evidence can establish beyond a reasonable doubt that it was the accused who assaulted him. I have taken into account the warning as to the dangers of identification evidence that would attend his evidence if given before a jury. I do not accept that there is any relevant distinction based on the Crown’s assertion that Mr Maguire purported to “recognise” rather than “identify” the accused. The extent to which he knew Mr Jenkin (or the man who assaulted him) is questionable in view of the fact that he did not even know his name. In any event, the incident he described did not involve an attempt to extort money from him. Rather, it involved “Red Doot” assaulting him because he kept repeating himself. While close similarity is not required for tendency evidence to have significant probative value, the safest course is to disregard this evidence.

11. [72]

    As to Lisa Mara, I am not prepared to act on her evidence. I do not know whether she was doing her best to tell the truth. What I do know is that her original statement alleged that the accused assaulted her and Stuart Cowan, (and intended or attempted to detain her in a laundry), at a time when the accused was in actually custody. She said in her statement that the incident occurred “around her birthday” on 24 November 2014. This could not be true because the accused was incarcerated for some months either side of that date. This was a matter that was considered on the voir dire when objection was taken to her evidence. [46] When she came to give evidence in the trial, she was vague as to the dates. Listening and watching her give evidence, I formed the view that her vagueness was deliberate. The reason became clear under cross-examination. She said she had been told by one of the police investigators (not Detective Adams) that this “couldn’t have been the date” because the accused was “supposedly incarcerated.” The investigator in question gave a somewhat different version of events and it changed under force of the examination. He was not prepared to admit that he told Ms Mara that the accused was incarcerated at that time but, if he didn’t, it is a mystery as to how Ms Mara knew that. In any event, this “nobbling” of the witness meant that it was extremely difficult to assess her credibility.

12. [73]

    I accept the Crown’s submission that this matter did not mean that Ms Mara was not otherwise telling the truth. It was submitted, and I accept, that I “should not throw the baby out with the bathwater”. However, I do not accept that the evidence in Ex KKK and Ex LLL provides any real corroboration of her evidence although they do clarify the dates and suggest her account of the visit to Dr Ali on 10 May 2014 is more accurate than that of Mr Jenkin.

13. [74]

    A further matter of concern is the fact that her first statement made no mention of knowing Mr Dower or of any incident between Mr Dower and Mr Jenkin. A short time before she gave evidence, she told police that she had seen Mr Jenkin strike Mr Dower and that the argument was over money. For reasons that are unknown, she refused to make a statement about this. Her explanation for recalling this potentially important matter at such a late stage was improbable. She said she had, presumably recently, seen a photograph of Mr Dower in a news report.

14. [75]

    Ms Mara freely acknowledged her drug addiction at the time and, judging from her appearance and demeanour, she has made great strides in overcoming that problem. If it were not for her deliberate imprecision regarding the dates, and based on her demeanour alone, I would have found her to be a reasonably convincing witness. However, for the reasons I have explained, I am unable to act on her evidence. While I prefer her account to that of the accused, the incident she described is certainly not established beyond reasonable doubt. I will disregard her evidence.

15. [76]

    RS’s account of being detained by the accused arose on the night that Mr Dower died. That event, and her evidence on the issue, is so inherently connected with the narrative upon which the Crown relies, I think it is questionable whether it should also be used to support a tendency to detain or lock people inside the unit. There would be an element of circularity in the reasoning. In any event, RS went to Unit 13 voluntarily looking for AR and stayed there to take heroin supplied by the accused. Her evidence suggested that it was her perception, rather than the actuality, that she was being detained. She said she “heard keys rattling” and “thought” Mr Jenkin had locked the door. [47] She agreed in cross-examination that she did not know whether the door was locked or not. [48]

16. [77]

    I will take RS’s evidence into account on the central issues in the trial but I will not use it in support of the Crown’s tendency case.

17. [78]

    DD’s evidence concerned an argument over money and family relationships that took place in Mr Jenkin’s unit. It almost developed into a fair fight outside but the two men decided against the idea. While DD said that the door was locked, and that this was part of the reason for the argument, there was no real suggestion that DD was detained for any length of time. There was obvious personal animosity between the men. DD’s evidence, even if it was accepted, does not establish (beyond reasonable doubt) that Mr Jenkin had a tendency to stand over people for money or to lock people inside his unit.

18. [79]

    The tendency evidence that is closest in character to what the Crown submits the accused did to Mr Dower came from Jodie Pike and Dusan Vukadinovic. Each gave evidence of being intimidated, assaulted and detained by Mr Jenkin. Each is a witness whose evidence may be unreliable for the reasons set out in paragraphs 51(1) and 51(3) above.

19. [80]

    In the case of the allegations made by Jodie Pike, the accused acknowledges that an incident occurred around six month before Mr Dower’s death. However, the character of the incident he described is very different to that alleged by Mr Pike. In the case of Mr Vukadinovic, the allegations are flatly denied.

20. [81]

    Mr Pike alleged that the accused came to his unit armed with a taser, a baton and a chain and insisted that Mr Pike accompany him back to Mr Jenkin’s unit. Mr Dower was present at the unit and Mr Jenkin questioned them about whether Mr Dower gave money to Mr Pike. Mr Pike’s evidence about the circumstances in which Mr Dower left his unit is an integral part of the prosecution case on count 1. For this reason, I am reluctant to use Mr Pike’s evidence of the earlier incident to support the tendency case. It is also the case that Mr Pike has a clear motive to bolster the case against Mr Jenkin because he has admitted to hitting Mr Dower at some stage.

21. [82]

    Mr Vukadinovic gave evidence that Mr Jenkin assaulted him, detained him and sometimes took money from him through use of his keycard. There is some evidence that could potentially provide support for Mr Vukadinovic’s account. This includes that he left his unit in Block 4 Crana Place which was immediately upstairs from Mr Jenkin’s home. He also made a complaint to the police. However, he refused to sign his statement about the incident. There was also (hearsay) evidence from his partner, Ms Zonneveld that he had injuries and that things were “good” when Mr Jenkin was not staying in his unit. Against that, the relationship between Mr Vukadinovic and Ms Zonneveld was a volatile one. Asked whether the pair had regular arguments Mr Vukadinovic said “Yeah. We have sex. We fight. We do everything.” [49] The evidence showed that Ms Zonneveld had an animosity toward Mr Jenkin. Mr Vukadinovic was a heavy user of alcohol and there is a long history of serious psychotic illness. Taking all of this into account, I think I should approach this evidence with great caution.

Conclusion on tendency evidence

1. [83]

   As the tribunal of fact, I can give the particular parts of the evidence the weight that I feel they deserve. I have come to the conclusion that I should give the tendency evidence no weight. There are manifest problems with each aspect of the prosecution’s tendency case and I am not satisfied beyond reasonable doubt that the Crown has established the tendencies alleged. The process of reasoning involved in using tendency evidence has inherent dangers. If this body of evidence was adduced before a jury, significant warnings would be provided. Taking all of that into account, I have decided to put the tendency evidence aside and to decide the case on the evidence more directly relevant to the case against Mr Jenkin.

2. [84]

   Piecing together a chronology of the events leading to the discovery of Mr Dower’s decomposing body is challenging. This is partially because of the fallibility of the witness’s memories and the quality of their evidence. It is also because the death was not reported in a timely fashion, the body was badly decomposed and estimating the date of death is difficult. In a number of instances, the first time the witnesses were called upon to recall the events and when they happened was many weeks or months after the events of which they gave evidence.

3. [85]

   However, there is evidence from which a reasonably clear chronology can be pieced together, or through which aspects of the witness’s evidence can be tied down to particular dates and times. This includes police and hospital reports as well as electronic data contained in banking records, times recorded on telephones, telephone records and CCTV footage from local businesses.

The second half of 2014

1. [86]

   On 21 June 2014, Mr Dower presented at Wollongong hospital with a “painful left knee” and kidney pain. He said he was assaulted by a “martial arts expert” and also said he lent money to his assailant to feed his drug addiction. He was reluctant to give further details. This was Mr Dower’s eighth presentation to Wollongong Hospital that year. He also sought medical assistance at the hospital on 19 July, 17 August and 27 November 2014. It is agreed that Mr Jenkin was in custody from 18 September 2014 until 17 January 2015. During that period, Mr Dower only presented to the hospital once (on 27 November 2014).

January – early March 2015

1. [87]

   On 5 January 2015, $1,451.11 was deposited into Mr Dower’s ANZ bank account. $1,450 was withdrawn the same day. This is significant because Mr Jenkin was in custody at that time. The banking records demonstrate a pattern that the whole amount of Mr Dower’s pension payments was withdrawn very soon after it was deposited.

2. [88]

   On 17 January 2015, Mr Jenkin was released from custody and returned to live at 13/4 Crana Place, Mangerton. He had held the lease to those premises for a lengthy period prior to being incarcerated.

3. [89]

   On 27 January 2015, $12,082.47 was deposited into Mr Dower’s bank account. Mr Dower was in receipt of both an Australian pension but also a pension from Finland where he worked as an English teacher, and had a wife and child, for many years.

4. [90]

   On 28 January 2015, there were a number of debit transactions on the account. This included the withdrawal of around $500 from the ATM at the Metro Petroleum in West Wollongong. The owner of the Metro Petroleum, Omar Noun, said that Mr Dower would come in with a “pony tail guy” and use the ATM. Mr Jenkin wears his hair in a ponytail. This evidence was general and not specific to 28 January 2015. He also said Mr Dower would come in with the “pony tail guy” and another man who was “a little bit tall”. Alison Hilton worked at the Metro Petroleum. She described two “Marks” who used to come in. One of those was clearly Mr Dower – he “looked old” (50, 55 years) he’d “come from somewhere like Dutch”, had a daughter who lives over there, smelt of alcohol, received two pensions, including one from overseas. Sometimes he came with someone else who fits the description of Mr Jenkin – medium build, on a push bike, red hair in a roll with a ponytail, plaited. Ms Hilton said Mark (Dower) was always friendly except when he was with the guy with the pony tail. She saw them at the ATM together and Mark would “get the money out and give money to the man with the ponytail.” Again, this evidence was not date specific but there was an occasion on 30 March the man with the [pony] tail came in without Mark and purchased items with a large number of 50 cent pieces. [50] There is evidence that Mr Jenkin had access to a large number of coins at that time.

5. [91]

   On 28 January 2015, there was a further $2,000 withdrawal, this time from the ATM at the Crown Convenience Store near Mangerton. Mark Lorenzetti was the owner of this store and knew Mark Dower. Mr Dower told him things in the last weeks of his life. I will return to those.

6. [92]

   On 7 February 2015, there were two withdrawals totalling $2,500 from Mr Dower’s bank account. [51]

7. [93]

   Shortly before midnight on 8 February 2015, Senior Constable Mathew Beretov arrested Mr Jenkin and seized a sum of $1,690 in cash. There is a dispute as to where the money was found. Mr Jenkin allegedly told Mr Beretov that a man called “Jono or something” gave him the money. He said they had gone to an ATM and withdrawn the money. Mr Jenkin was charged with “goods in custody” in relation to the cash. The case was mentioned in the Local Court on 9 and 17 February 2015 and adjourned until 24 March 2015. That final date is significant to an understanding of the events around Mr Dower’s death.

8. [94]

   On 26 February 2015, the PIN on Mr Dower’s ANZ card was changed. [52]

9. [95]

   On 28 February 2015, Mr Dower presented to the Wollongong Hospital Emergency Department. He complained of a painful right side chest and said he fell on a flat concrete surface and had also been hit in the chest. This was his “fifth presentation in 6 days”. He was “conscious, oriented and afebrile” (that is, he had no fever) with “nil respiratory distress and chest clear”.

10. [96]

    While the timing is not precise, a number of lay witnesses gave evidence of seeing Mr Dower with bruising to his body and black eyes at around the time of this hospital visit. Mark Spicer noticed he had a black eye, bruises on his chest and arms “about a month prior to he vanished”. James Hall pulled up Mr Dower’s shirt and noticed a number of “bad bruises on him.” There was no time frame on Mr Hall’s observations and other evidence he gave (about a conversation with Mr Jenkin at Tony’s Chicken Shop) was clearly wrong (because Mr Jenkin was already in custody). Mark Lorenzetti noticed a black eye, blood on his nose and a large area of bruising to his torso. He said this was “probably January/February 2015”.

11. [97]

    CCTV footage captured on 4 March 2015 shows Mr Dower and Mr Jenkin attending the Liquorland store at Figtree. Mr Jenkin had a bag containing casks of wine and Mr Dower conducted the transaction via the EFTPOS facility at the counter of the shop. The ANZ bank records show a $122 EPTPOS transaction at Liquorland Figtree on 4 March 2015.

What Mr Dower told three people who cared about him

1. [98]

   I digress from the timeline to refer to some evidence given by three witnesses who were friends of Mr Dower but not part of the Crana Place, Mangerton community. It is difficult to place their evidence precisely within this chronology but their evidence is important in resolving one of the central issues in the case. The evidence is hearsay – it is evidence of what the three witnesses said that Mr Dower told them. I have taken into account the fact that the evidence may be unreliable for the reasons set out earlier in this judgment. However, I found the witnesses to be credible and, in spite of his mental health issues, alcoholism and itinerant lifestyle, there is little (if anything) to suggest that Mr Dower was not giving them an accurate account of what was happening to him.

2. [99]

   Tony Hardy was an old school friend of Mr Dower. In my assessment, he was the most impressive witness to give evidence in the case. He spoke of the deterioration in the mental and physical health of Mr Dower over the forty or so years of their friendship. The two friends lost contact during the time Mr Dower lived in Europe. On the weekend of 14-15 March 2015 Mr Dower went to Mr Hardy’s father’s house. He showed Mr Hardy a number of injuries and told him “some guy bashed me”. He said the guy who bashed him was not Dominic (in this context, this is clearly a reference to Dusan Vukadinovic). He said it was a person “living upstairs from Dominic”. Mr Vukadinovic lived on the top floor – nobody in Block 4 lived upstairs from him. Mr Jenkin lived downstairs from Mr Vukadinovic. Mr Dower told Mr Hardy he gave $2,000 to the man because “he thought he was a mate” but the man assaulted him. He described the man as in his 30s or 40s, had tattoos on his arms and that he had a punching bag and stolen property in his unit. Mr Hardy offered to take Mr Dower to the police (to complain about the money and the assault) but Mr Dower said “I’m not going to the police … if I do, this person’s going to kill me.”

3. [100]

   Mr Hardy saw Mr Dower again. His memory was that it was “at least another two weeks later”. He thought it was a weekday. Taking into account the other evidence in the case, this final meeting is likely to have been some time earlier. In any event, Tony Hardy said: [53]

4. [101]

   Peter Stepancic was a friend of June Dower, Mr Dower’s mother. He met Mr Dower at a time when Mr Dower was living at Staff Street in Wollongong. He stopped living there and was then living in “Clara Street” (which I take to be a reference to Crana Place, Mangerton). He said he lived at Jodie’s place and Dominic’s place (clearly references to Jodie Pike and Dusan Vukadinovic). After this time, he did not look good. He saw Mr Dower with bruises on the legs and ear and black eyes. He said that Mark told him: “I fall from the gutter, but he didn’t tell me the truth.” He agreed Mr Dower was a quiet and placid person: “he was a nice person, yeah.” He said that Mr Dower was afraid to go home but could not stay at Mr Stepancic’s home because he had a niece from Slovenia visiting him at the time. This was in February 2015.

5. [102]

   Mark Lorenzetti, the owner of the Crown Convenience Store in West Wollongong or Mangerton, was another uncomplicated, impressive witness. Mark Dower was a regular customer who Mr Lorenzetti had known since he opened the business in 2010 or 2011. He described Mr Dower as a smart, intelligent guy who always had a smile on his face. Sometimes he got a little depressed, as everybody gets. [54] About four or five months before he died, Mr Dower changed. He was on edge and Mr Lorenzetti was concerned for him. Mr Dower sometimes obtained goods on credit. He always paid the money back when he got his pension. However, in “probably January/February 2015”, there was a problem with repaying a small debt. It was in that context that Mr Dower explained the situation he was in. He said: [55]

6. [103]

   Mr Lorenzetti saw injuries on Mr Dower. He had a black eye and blood over his face. He had to push Mr Dower to tell him what was happening to him. Mr Dower said the person who was doing these things to him was “Mark Jenkin, or Jenko as he called him.” He was told “Jenko had taken his PIN and – his card and his pin, and taken all his money.” He recalled that Mr Dower told him that he was going to change his PIN. He thought that was in January 2015.

7. [104]

   The evidence of what Mr Dower told Messrs Hardy, Stepancic and Lorenzetti is hearsay evidence. It is evidence that may be unreliable. There is no recording of what was said and Mr Jenkin is at a forensic disadvantage in testing or challenging it. It is clear that some of the details are wrong. For example, Mr Lorenzetti said that the bank account was with the Commonwealth Bank whereas it was an ANZ account. As I have observed, Mr Hardy must be wrong about the perpetrator living above “Dominic” because Mr Vukadinovic lived on the top floor. These are just examples. While the conversations were significant enough, none of the witnesses could have imagined that they would be required to provide evidence of the details of the conversations in a murder trial. When Mr Stepancic referred to Mark Jenkin, it seems likely that this is a name he heard after the event. More likely, as he really conceded, the name that was used was “Jenko.”

8. [105]

   In assessing this body of evidence I have taken into account the potential unreliability of the evidence. This stems from its hearsay nature and the fact that the source of the information is a man suffering from alcoholism and psychiatric issues. Even so, three witnesses of substantial credit gave the evidence and the body of evidence fits together as an homogenous whole.

Late March 2015

1. [106]

   On 17 March 2015, Mr Jenkin committed a burglary at the home of Gary McKay. Mr McKay was the former boyfriend of Lisa Mara, who lived with Mr Jenkin for a time. There was animosity between the men. A number of items were stolen including a rifle and a large amount of money in the form of coins. Two or three weeks later, or about a week before 2 April 2015, (when Mr McKay made a police statement), Mr McKay tracked Mr Jenkin down and beat him up. Mr Jenkin lost the key to his unit and was left with obvious injuries to his face as well as what he described in evidence as painful injuries to his ribs.

2. [107]

   On 18 March 2015, there was a withdrawal of $1,050 from Mr Dower’s bank account. The evidence suggests that Mr Dower undertook this transaction at the Wollongong Branch of the ANZ Bank. On the same day, Mr Dower’s ANZ card was cancelled at 11.39am.

3. [108]

   The evidence suggests that at around this time Mr Dower was sleeping at the unit of Jodie Pike. Witnesses described him as “couch surfing”. Mr Pike’s unit is in the same vicinity as the Crana Place units but is on, or just adjacent to, Howarth Place. The Court’s inspection of the surrounding environs showed that it was just a couple of minutes’ walk from Block 4, where Mr Jenkin’s unit (13) was located. At some point around 21 March 2015, Mr Dower moved from Jodie Pike’s unit to Mr Jenkin’s unit. The circumstances in which that occurred are disputed.

Mr Dower moves to Mr Jenkin’s unit

1. [109]

   The events from Friday 20 March 2015 until Mr Dower’s death are crucial. A number of events of significance took place within these (approximately) seven days. Mr Jenkin does not dispute that Mr Dower was staying at his flat during most of this period and that he died in the bathroom of Unit 13, 4 Crana Place at the end of that period.

2. [110]

   Mr Jenkin wanted Mr Dower to attend the Port Kembla Local Court on Tuesday 24 March 2015 to establish that the money seized by Constable Beretov on 8 February 2015 was not the proceeds of crime (or more correctly, property that may reasonably be suspected of being stolen or otherwise unlawfully obtained). It was in that context that Mr Dower moved to his unit.

3. [111]

   Mr Jenkin gave evidence that he was with Mr Turner and that Mr Jenkin had just purchased a gram of heroin from “PL and DF’s place”. He told Turner he had to drop in and see Mr Dower “about court tomorrow’. He and Mr Turner attended Mr Pike’s unit. Mr Jenkin noticed that Mr Dower had a number of injuries and asked who had caused the injuries. Mr Pike said “I didn’t touch him” and Mr Jenkin said: [56]

4. [112]

   He offered Mr Dower accommodation and his offer was accepted. He came of his own free will – “he was fine, he was happy. Actually relieved.” The three men walked to Mr Jenkin’s unit. Mr Dower was “a bit stiff legged, and walking quite weird … like a thunderbird”. When they got to Mr Jenkin’s unit, Mr Dower alleged that Mr Pike had assaulted him. They ordered pizzas and Mr Dower “ate his whole pizza.” Mr Jenkin returned to Mr Pike’s unit to confront him about the assault of Mr Dower because Mr Jenkin had warned him before.

5. [113]

   Mr Pike, Dale Bitton and Paul Turner gave different versions of the events surrounding Mr Dower’s move from Mr Pike’s unit to Mr Jenkin’s unit in Block 4 Crana Place.

6. [114]

   Jodie Pike said that Mr Jenkin came to his flat with another man, said Mr Dower “owed him money” and “took him away”. He did not know the other man and described him as “chubby” and about five feet six inches tall. He said Mr Dower looked scared. He described Mr Jenkin “flat out, straight out like he hates Mark” [57] and “he’s fast, he’s metabolism and heart rate was pumping.” [58] He said he didn’t take much notice of the other man.

7. [115]

   Dale Bitton said he was present at Mr Pike’s unit when Mark Jenkin came looking for Mr Dower. He said Mark was “angry”, saying “I’m going to kill him” and that he wanted to speak to Mark. He came back a couple of days later “with his brother, Stuart”. That part of Mr Bitton’s evidence is clearly wrong (or relates to an incident at some other time). He said that Mr Jenkin was talking about “the money at the police station” that “the police took off Mark, little Mark Jenkin.” [59] Mr Dower went with Mr Jenkin. Mr Bitton was asked how Mr Dower was behaving and he said “Scared. Like he didn’t want to go.” Mr Bitton said Mr Dower came back to the unit two days later and had injuries. (There is no other evidence of this.) He saw Mr Jenkin two or three days later. Mr Jenkin collected Mr Dower’s property, including his medication. Mr Jenkin said that “Mark was clumsy and fell over the bath, falling over the bathtub” and “I was detoxing him.” It was difficult to piece Mr Bitton’s evidence together chronologically. It seems very likely that he conflated a number of events.

8. [116]

   Paul Turner was called by the Crown but only four questions were asked of him. [60] The narrative of events he gave was elicited in cross-examination and re-examination. [61] He said that he and Mr Jenkin went to the door of a unit [which was clearly Jodie Pike’s unit] and knocked but nobody answered. He first saw Mark Dower when he was walking with Mr Jenkin from Mr Pike’s unit to Mr Jenkin’s unit. He said it was around lunchtime of what he believed was Saturday 22 or 23 March 2015. He did not notice any injuries on Mr Dower. Later he said he first met Mr Dower on Sunday. He said they went to the laundry and had a shot (of heroin). The three men then went to Mr Jenkin’s unit. He said Mr Jenkin was crouched on the lounge in front of Mr Dower and asking him why he did not answer the door. He said he heard Mr Jenkin slap Mr Dower. He gave evidence of Mr Dower defecating on himself and the circumstances giving rise to the video on Mr Jenkin’s telephone.

9. [117]

   It will be seen that the evidence of these witnesses is inconsistent. In each case, the evidence is of a kind that may be unreliable.

10. [118]

    Mr Pike is a person who might reasonably be supposed to be involved in the events giving rise to the prosecution. He admitted assaulting Mr Dower both in evidence and to a number of the witnesses. On the defence case, the injuries that led to Mr Dower’s death were either caused accidentally (a series of falls including a fall in the bath shortly before he died) or were inflicted by Mr Pike before Mr Dower moved to Unit 13 in Block 4. Mr Jenkin gave evidence that, from what he now knows, Mr Dower’s behaviour was consistent with him having a subdural haemorrhage and, from that, it might be inferred that the assaults by Mr Pike may have resulted in the subdural bleed. [62] If Mr Pike was involved, and even on his own account of assaulting Mr Dower, he has every reason to attempt to lay the blame on somebody else and Mr Jenkin is a good target. I have treated Mr Pike’s evidence with considerable caution.

11. [119]

    Mr Bitton is a man with obvious mental health issues. This was evident in the way he gave evidence. He seemed to wander and have difficulty articulating what he saw and heard. He has provided inconsistent accounts and his chronology of events cannot be reconciled with other evidence in the case. He said that Mr Jenkin’s brother (“Stuart”) was present when Mr Dower was taken to Mr Jenkin’s flat but this was clearly wrong. I infer that this was an instance of mistaken identity and that Mr Bitton was referring to Paul Turner who was unquestionably present (or nearby) at that time. Again, I treat Mr Bitton’s evidence with scepticism and take into account that his mental illness may mean his evidence is unreliable.

12. [120]

    Mr Turner was present during the part of the period that (on the Crown case) Mr Dower was detained in Mr Jenkin’s unit. He did nothing, or next to nothing, to assist him. He did not call a doctor or suggest that a doctor be called. The parties agree that he is a person who was criminally concerned in the events giving rise to Mr Dower’s death. It suits his purposes to lay all or most of the blame on Mr Jenkin. He is a witness whose evidence may be unreliable and I take that into account in assessing his evidence.

13. [121]

    The evidence does not allow a finding that Mr Jenkin abducted Mr Dower or physically forced him to move from Mr Pike’s unit to Unit 13. However, the evidence taken as a whole (that is, both the specific evidence and the other evidence in the trial) suggests that Mr Dower was afraid and that he may have gone with Mr Jenkin as a result of his fear.

Evidence of Mr Dower inside Unit 13

1. [122]

   According to the expert evidence of Senior Constable Songran Yang, on Sunday 22 March 2015 three videos were recorded on Mr Jenkin’s mobile telephone (or a ‘phone that was in his possession on his arrest). The third video is graphic and distressing. It depicts Mr Dower in humiliating circumstances. It appears that Paul Turner was holding him up and that Mr Dower had lost control of his bowels. The incident occurred in Mr Jenkin’s bathroom and Mr Jenkin was filming the incident while ranting, raving and abusing Mr Dower. A proper understanding of the relationship between the men is informed, to some extent, by this piece of evidence.

2. [123]

   Mr Jenkin’s evidence is that data retrieved from the telephone is incorrect and that this video was actually recorded later. He said it was recorded “12-14 hours before he went to court”. This is a reference to the court appearance on Tuesday 24 March 2015. He says that the video was recorded on Monday 23 March 2015. Either way, there is no dispute that Mr Dower stayed in Mr Jenkin’s unit from that time until the day that he died. On Mr Jenkin’s evidence, he died on Friday 27 or Saturday 28 March 2015. [63]

3. [124]

   In that period, some people visited Mr Jenkin’s unit and either saw or heard Mr Dower or were aware that he was present.

4. [125]

   Aleta Serisier was a friend of Mr Jenkin. She sometimes visited him after work and before she caught her train. She gave evidence of visiting the unit during the period that Mr Dower was present. She said she could hear “grunting noises” from the second bedroom. These noises undoubtedly came from Mr Dower. At some point Mr Jenkin took Mr Dower a cigarette. Mr Jenkin told her he had a friend staying with him and that they had to go to court. She said that she never saw the man. Under cross-examination, a scenario was put to her that involved Mr Dower leaving the room and falling face first to the floor. She said “I don’t really recall that.” She said it “rang a bell” but went on to say that she had been there a number of times and seen different people there. She said “I suppose it could have happened but I don’t recall it” and that “I guess that’s something that I’d recall”. She did not recall Mark Jenkin saying “I’m putting you in the foyer and calling an ambulance.” As to whether it was “possible” that Mr Dower then said “please put me back in my room, I promise I’ll be right in a couple of days”, she said “I don’t recall any of it.”

5. [126]

   AR may also have seen or heard Mr Dower in Mr Jenkin’s unit during this time. However, on his evidence it is difficult to know. He claimed that he could not remember very much at all, even when his witness statement (or interview) was put in front of him. I formed the view that he was not making a genuine attempt to give evidence of whatever it is that he saw and heard. Mr Jenkin’s evidence was that AR was present at the same time as Ms Serisier and that Mr Dower fell flat on his face in front of both of them. AR said he saw Mr Dower in a bedroom of the unit but did not speak to him and then, inconsistently, claimed “I can’t remember if there was a person there or not”. Based on his statement, he said there was a “bad odour” around Mr Dower. He later heard that Mr Dower died. Unsurprisingly, given the quality of his evidence, he was not cross-examined. Based on his performance in evidence in chief, there would have been little point in putting to him Mr Jenkin’s version of events.

6. [127]

   Paul Turner gave evidence of being present while Mr Dower was in Unit 13. In evidence in chief, which comprised four questions including being asked his name, he merely said that he was not alone with Mr Dower and did not assault him. He gave considerably more evidence in cross-examination. He agreed that he did not see Mr Jenkin assault Mr Dower at any stage. He denied Mr Dower said that Jodie Pike assaulted him. He said that he and Mr Jenkin went to Jodie Pike’s place, knocked on the door and nobody answered. A short time later he saw Mr Jenkin and Mr Dower walking back towards Mr Jenkin’s unit. He said he went to the laundry and took some heroin. He denied a series of propositions to the effect that Mr Dower had a number of noticeable injuries when he moved from Mr Pike’s unit to that of Mr Jenkin. He described Mr Dower defecating himself and the efforts to clean him up. This encompassed the video found on Mr Jenkin’s telephone. He said that Mr Dower went to the bathroom and when he came out he fell over on to his knees. He assumed Mr Dower was drunk and was having trouble standing up. He said he saw Mr Dower with a “bottle of scotch” at some stage. He understood that Mr Dower was going to court with Mr Jenkin, that he was an alcoholic and Mr Jenkin wanted him to stay at his place in preparation for court. He denied that Mr Jenkin assisted in cleaning Mr Dower up. He was asked (again) whether he saw Mr Jenkin hit Mr Dower and he said “I didn’t see it – physically see it, but I heard it”. He described it as a “slap”.

7. [128]

   He said that he left the unit the following day and went to his mother’s place in Woonoona. There is a Westpac banking statement showing a withdrawal from Mr Turner’s account on 23 March 2015 in Woonoona. He denied that Mr Jenkin went to court the following day. This part of his evidence is either wrong or is explained by the fact that the video was taken on the date that the data on the telephone suggests it was. That is, the video was taken on Sunday 22 March 2015, Mr Turner left on Monday 23 March 2015 and Mr Jenkin attended court on Tuesday 24 March 2015. He denied being present at the unit when AR and “Aleta” were present. He denied seeing Mr Dower fall flat on his face, or that he fell and Mr Jenkin tried (or did) break his fall. He denied seeing Mr Dower with “marks on his face, swelling and bruising”. He agreed the three men ate pizzas which were paid for by Mr Jenkin. He agreed that Mr Jenkin gave him $200 in coins with which “to score”.

8. [129]

   Mr Turner gave further evidence in re-examination. He claimed that Mr Jenkin told him to “king hit the bloke on the lounge” before they entered Mr Pike’s unit. He explained what had happened before the video was taken. He described Mr Dower as a very quiet man (although he had just met him) and said Mr Dower was confused because Mr Jenkin was firing questions at him. He also gave further evidence of hearing the slap and seeing Mr Dower’s reaction to that; he rubbed the left side of his head near his temple.

9. [130]

   I treat Mr Turner’s evidence with great caution. He is, on the prosecution case, a co-offender and criminally involved in the events leading to Mr Dower’s death. He was present when Mr Dower came from Mr Pike’s unit to Mr Jenkin’s unit. He was present at the unit (on his own account) when Mr Dower was assaulted. He seems to have done nothing to assist Mr Dower. He has a substantial motive to minimise his own role and lay the blame entirely at Mr Jenkin’s feet. I would not act on his evidence unless it received some support from other credible evidence in the case.

10. [131]

    NB lived in the Crana Place complex for many years and knew both the accused and the deceased. He gave evidence that Mr Jenkin told him that Mr Dower was staying at his unit and Mr Jenkin was “helping him get off alcohol”. Mr Jenkin left some property at NB’s unit and NB wanted it out of his place. He went to Unit 13 to return it. At that time, Mr Jenkin told him certain things including that he had given Mr Dower a “whack up the jaw” and a shot of heroin. He went to the unit and saw Mr Dower lying down, or sleeping, on a lounge. He noticed a bruise around his ear and down to the left jaw. He was “semi-conscious”, mumbling some words that were hard to understand. He did not contact authorities about what he saw, or Mr Dower’s condition, because “I just thought he would sleep it off.” NB was steadfast under cross-examination. However, there is no evidence to support his account that Mr Jenkin gave Mr Dower a shot of heroin and the way in which he gave evidence suggested that he was somewhat partisan (against Mr Jenkin).

11. [132]

    While it is impossible to be certain, it seems reasonable to infer that NB observations came after those of Mr Turner, AR and Ms Serisier although it is also possible that Ms Serisier was present after NB. She said she came to the unit after work and that she worked on Thursdays and Saturdays.

Mr Dower’s last days

1. [133]

   It is difficult to know exactly when the observations of Mr Turner, Ms Serisier, NB and AR were made. The only evidence of what happened to Mr Dower after those observations comes from Mr Jenkin. There is no evidence that Mr Dower left Mr Jenkin’s unit from the time he arrived there until the day he died. (I have disregarded Dale Bitton’s evidence which at one stage may have suggested that Mr Dower returned to Jodie Pike’s unit. It is unclear whether this evidence related to the relevant time and it is inconsistent with all of the other evidence.)

2. [134]

   What is known is that there were attempts to use Mr Dower’s ANZ keycard on Monday 23 March 2015. These attempts occurred shortly after 1.00pm. There was a balance inquiry and three attempts to withdraw money. Each transaction was unsuccessful and was declined. The evidence is silent as to who attempted these transactions. Mr Jenkin gave evidence speculating that Jodie Pike may have had access to the card but there is no evidence to support this.

3. [135]

   Haralambos Chrissostomidis gave evidence that Mr Dower told him that “Jenko took my keycard”, of making arrangements to cancel the card and then of seeing Mr Jenkin at the Metro Service Station and that he looked upset, “swearing out of his mouth like, and “he had like something in his hand, maybe like a keycard.” The Crown suggested in address that this evidence might tie in with the attempted use of the card on 23 March 2015. However, the evidence was vague as to the date and other aspects of Mr Chrissostomidis evidence are clearly wrong. For example, he said he called the Commonwealth Bank to cancel the card whereas Mr Dower’s bank account was with the ANZ bank. It is difficult to make much, if anything, of this evidence.

4. [136]

   I will refer to Mr Jenkin’s evidence in more detail later in this judgment, but in essence he says that Mr Dower’s state of health and alertness varied over the following days. He was having difficulties washing himself and Mr Jenkin was caring for him. It was on the “Friday or Saturday night – the 27th or 28th March” that he died after falling awkwardly in the bath. He appeared to lose consciousness and lack vital signs of life. Mr Jenkin attempted to resuscitate him without success. About twenty minutes later, RS arrived at the flat looking for AR.

5. [137]

   Based on all of this evidence, I find that Mr Dower was staying at Mr Jenkin’s flat for something like 5 or 6 days, from about 22 or 23 March (when he moved from Pike’s unit) until 27 or 28 March (when he died). At no stage during this period was medical attention sought.

6. [138]

   The evidence of Anthony Hardy, Mark Lorenzetti and, to a lesser extent, Peter Stepancic (summarised above) is relevant to an assessment of the relationship between the deceased and the accused. Their evidence was not affected by the kinds of credibility issues that plagued a number of other witnesses. However, Mr Stepancic’s evidence did not implicate Mr Jenkin and the things said by Mr Dower must be assessed in the light of his mental health and medical issues. Each spoke of Mr Dower’s fears and injuries in the final weeks of his life. He was afraid to return to the Crana Place units and asked if he could stay with Mr Stepanic. Mr Stepanic saw injuries on Mr Dower and did not believe his explanation that he had fallen over. Mr Dower nominated “Jenko” as his tormenter to Mr Lorenzetti and provided a description to Mr Hardy that is consistent with Mr Jenkin.

7. [139]

   Margaret Scott has lived at Crana Place for about 40 years. She was a straightforward and impressive witness. She saw and heard the two men outside the laundry below her first floor unit. She said Mr Jenkin was asking for money from Mr Dower and was very aggressive and seemed to be angry. She did not see Mark Dower get angry. She did not give evidence of any violence between the men.

8. [140]

   Both James Hall and Mark Spicer described injuries they saw on Mr Dower. Mr Dower told Mr Hall that “Jenko” had been picking on him. He told Mr Spicer that “Mark Jenkins” (sic) had assaulted him.

9. [141]

   I have already referred to the evidence of Alison Hilton who saw the men together when Mr Dower withdrew money from the ATM at the Metro Petroleum.

10. [142]

    Haralambos Chrissostomides gave evidence of an incident where Mr Jenkin took $10 from Mr Dower. He also gave evidence that Mr Dower had a black eye and told him that Mr Jenkin had his keycard. [64] It is not clear when these observations and conversations took place.

11. [143]

    Norman Quince lived at Crana Place for 14 years gave evidence that on most days over a period of 4-6 weeks he saw persons, who matched the descriptions of Mr Jenkin and Mr Dower, around the back of Block 4 and around the laundry. He gave evidence that he didn’t know the names of the men but that over this period of observation they “seemed to be getting on pretty well, at one stage”. [65]

12. [144]

    Scott Spicer gave evidence that he knew Mr Dower and used to see him regularly in the mornings. He said that on the last occasion that he was talking to Mr Dower, Mr Dower spotted Mr Jenkin coming along Myuna Way and appeared to be startled. Mr Dower “got all fidgety”, and said, "I gotta go, I gotta go". [66]

13. [145]

    Nobody was notified when Mr Dower died. No call was made to emergency services (police or ambulance). Nor was any loved one or relative advised of his death. It seems his dead body was left lying in the bath in Mr Jenkin’s unit for a week or more.

14. [146]

    Both RS and the accused agree that a short time after he died, RS came to the premises looking for AR. The pair gave different accounts as to what happened while she was there and for how long she stayed. Mr Jenkin says she arrived within about half an hour of Mr Dower’s death. Both witnesses agreed that RS saw Mr Dower’s corpse lying in the bath.

15. [147]

    It was in the next week that Mr Jenkin was assaulted by Mr McKay (or, on Mr Jenkin’s account, by Mr McKay and other “bikies”). The approximate timing can be inferred because Mr Jenkin lost his key to Unit 13 during the assault. He moved in with (or at least slept at) premises at Myuna Way where a number of people were either living or occasionally staying. This included AR, DP, JG, CA and RS. The occupants of those premises noticed Mr Jenkin’s injuries (attributable to the assault by Mr McKay). Many things were said during this period and the witnesses, none of whom had much credit, gave various accounts of what Mr Jenkin told them about the events surrounding Mr Dower’s death. The evidence was that Mr Jenkin provided different versions to different people about the dead body in his unit to “to see which one spoke out of school”, or had a “big mouth”, or to “see which one talks, who’s got a big mouth.” [67]

16. [148]

    From the time of the assault by Mr McKay, Mr Jenkin only had access to his unit by climbing or shimmying from the window of the vacant unit next door (Unit 12) into the window of his lounge room. The inspection of the scene established that these windows were visible from (at least) some of the bed-sits in Block 2 which is 10 or so metres from Block 4 down a slight decline.

The movement of Mr Dower’s body and removal of other items

1. [149]

   On what was probably 3 April 2015 (which was Good Friday of that year), various items, possibly including the corpse of Mr Dower inside a surfboard bag, were thrown out of the window of Mr Jenkin’s unit. A number of witnesses observed this and both RS and Mr Jenkin gave evidence of removing various items from the flat in the early hours of the morning. Greg Redmond lived in Unit 4 of the bedsits in Block 2. [68] He saw Mr Jenkin with a skinny girl outside of Block 4 looking up and talking. He saw Mr Jenkin climb from one unit into his own unit. He then saw Mr Jenkin “passing out garbage bags, and two surfboards and a surfboard bag.” The skinny girl caught some of the bags and others hit the ground. He saw the pair try to move the bags and talking to some bloke in the bedsits. He said they struggled with the surfboard bag and “couldn’t carry it flat”. Christopher Joice made similar observations from Unit 2 of Block 2. [69] He described “surfboards floating through the air and someone picking it up … and they walked to corner of the building towards the laundry, laundries.” He “took” the person who was assisting Mr Jenkin to be male although he could give no description of that person. Scott Stephenson lived in Unit 6 of Block 2. [70] He also described an incident where he saw two surfboards and one surfboard bag thrown out of a window.

2. [150]

   RS gave evidence that she agreed to remove the corpse from the unit and believed that Mr Dower’s body was in a surfboard bag that was thrown out of Mr Jenkin’s first floor window. She gave a fairly detailed account of what the pair did in the course of moving various items from Mr Jenkin’s unit to the laundry. She did not look inside the bag and the colour of the bag she described (black) did not match the (silver) surf board bag in which Mr Dower’s body was ultimately found.

3. [151]

   Mr Jenkin’s account is different. He swore that he and RS removed various items of (irrelevantly, stolen) property from the unit but did not remove the body. This is what the three residents of the bedsits in Block 2 must have observed. However, Mr Dower’s body was not removed from the unit at that time. He said he returned by himself the following morning (4 April 2015) and attempted to use a plank between the windows to move the body from his unit to the vacant unit. (A plank was also used when he and RS removed property from the premises the day before). He gave evidence that his intention was to take the body from there to the Wollongong Hospital so that it could be discovered and Mr Dower’s loved ones notified: “so his family could have closure, have a funeral, that sort of stuff.” [71] However, in the course of attempting to push the body across the plank, it slipped and accidentally fell to the ground. He waited some time so as not to be discovered and then hid the body in the laundry. Some of this evidence will be set out in more detail when I deal with Mr Jenkin’s evidence.

4. [152]

   An important common feature between these two versions of events is that Mr Dower’s body was dropped (whether deliberately or accidentally) onto the grass below from the accused’s first floor window. The inspection of the scene showed that this was a bigger drop than might be expected from a first floor unit because the ground slopes away (towards the bedsits in Block 2). It is not disputed that the distance of the drop is 5.5 metres. [72] This is significant because it may explain a number of the injuries observed on post mortem examination.

5. [153]

   CCTV footage was obtained from an adjoining property on Howarth Place, Mangerton. [73] The inspection of the scene demonstrated that this is one way into the Crana Place housing complex and the most likely route if you are coming from Myuna Way (where Mr Jenkin and RS were staying). The CCTV footage shows Mr Jenkin and RS walking past the camera and toward Crana Place at 6.23am on 3 April 2015. Mr Jenkin is seen departing on a push bike at 10.26am and RS departs on foot at 10.33am.

6. [154]

   Scott Spicer (no relation to Mark Spicer as far as I can tell) has lived in Block 8 for about 8 years and knew Mr Jenkin, “just to say g’day”, from the area and seeing him hanging out near the laundries where Mr Jenkin had property stored. [74] He gave evidence of an incident “around Easter” of 2015. He had been to Tony’s Chicken shop to get his dinner and, as he returned via Howarth Place he saw Mr Jenkin and another man carrying a big bag. The bag looked like it was covered with a doona or something. It was “all sort of lumpy sort of shape” and it “looked heavy because they were struggling with it a bit.” The men seemed “a bit startled and tried to cover something up and walk the other way.” The two men then headed back in the direction of Block 4.

7. [155]

   It is difficult to know precisely where Scott Spicer’s evidence fits in with the narrative. Mr Jenkin did not directly address Mr Spicer’s version in the course of his evidence. He said his intention was to move the body from the laundry to the hospital to allow Mr Dower’s family to “have closure” and to stop the police pinning things on him. [75] He spoke to others about helping to move the body (AR and SM) but ultimately he said no attempt was made to move the body. [76] Mr Spicer’s description suggests that there may have been such an attempt although the timing of events is so vague that it is impossible to make a positive finding one way or the other.

8. [156]

   Mr Spicer also gave evidence that “some time after” this incident he was working at the block on NBN cabling when he observed police a number of times, who asked Mr Spicer whether he had seen Mr Jenkin. [77] Mr Spicer then saw Mr Jenkin at his unit an hour or so later, at which point he contacted Crime Stoppers and later observed that the police returned to the block.

9. [157]

   On 8 April 2015, Mr Jenkin was arrested for the break, enter and steal offence.

Alleged admissions

1. [158]

   Three witnesses gave evidence that Mr Jenkin told them that he had assaulted Mr Dower while he was at the unit. One witness gave evidence that he overheard Mr Jenkin admitting to assaulting Mr Dower.

2. [159]

   I have already referred to the evidence of NB who gave evidence that he spoke to Mr Jenkin while Mr Dower was still alive. He said that Mr Jenkin admitted to giving Mr Dower “a whack up the jaw” because Mr Dower was “pooing his pants”. He said that Mr Jenkin punched his hands into his fists two or three times but that he did not actually say how many times he hit Mr Dower. In giving this evidence, he replicated the gesture he claimed Mr Jenkin made and it was a firm punching of a clenched fist into the palm of the other hand. NB also said that Mr Jenkin gave Mr Dower a shot of heroin. It was put to NB in cross-examination that there was no such conversation and no such gesture but the witness maintained that there was. It was put that the interaction (concerning the property stored at the witness’s unit) occurred on 26 March 2015 (that is, the Thursday of the week Mr Dower was at Mr Jenkin’s unit). The witness said he took Seroquel to help him sleep but denied having any problem with his thought processes.

3. [160]

   SM was a childhood friend of Mr Jenkin and attended the Myuna Way premises when Mr Jenkin was staying there. He attended the premises to supply drugs (ice) to the occupants. He and others consumed ice intravenously and he “felt high”. He said there was a discussion about moving Mr Dower’s body and somehow renewing his keycard. These things were discussed in the presence of other occupants. SM said that that he and Mr Jenkin moved to a different room in the premises and had a private conversation. He said that they went into the bathroom. JG was also present in the house, and she said that Mr Jenkin and SM went into the spare room. [78] SM claimed that Mr Jenkin admitted that he gave “[Mr Dower] a couple in anger and he fell back and hit his head on the bath”. He thought Mr Jenkin told him he was “angry over the keycard.” SM agreed in cross-examination that he made two statements to the police and that the first one did not mention Mr Jenkin’s admission to assaulting Mr Dower. He agreed that he was provided with a letter from the police that assisted in his sentencing hearing.

4. [161]

   Michael Riley was in custody with Mr Jenkin shortly after the latter’s arrest on 8 April 2015. He gave evidence that Mr Jenkin told him certain things about the death of Mr Dower and the disposal of his body. Mr Riley contacted his mother almost immediately and his telephone call was recorded. [79] He told his mother:

5. [162]

   Mr Riley provided a statement to police on 17 April 2015. He gave evidence that Mr Jenkin told him:

6. [163]

   Mr Riley was motivated to obtain a benefit by providing this information to the police. He told his mother to tell the police “I’ll help them and they help me”. He was provided with a letter setting out his assistance when he came to be sentenced. He freely admitted this. When asked if he saw it as “a get out of gaol free card”, he replied “Absolutely. Absolutely.” Counsel for the accused put to Mr Riley “I put it to you that you do not know Mr Jenkin at all?” and “You never saw him or spoke to him in the yard, is what I’m putting to you?” [80] Mr Riley agreed he did not really know Mr Jenkin but insisted that he did speak to him in the yard.

7. [164]

   It is difficult to accept the proposition that there was no conversation between the men. Very little of the information that Mr Riley provided to police was in the public domain at the time he contacted his mother. He agreed he saw a news report that showed a body being carried out of the laundry at the block of units and that this is what prompted him to call his mother. There is no other evidence to explain how he came by the other information if he was not told these things by Mr Jenkin himself. He denied that he “pieced together the information” and he rejected the proposition that police had told him that the body was thrown from the window or provided him with other information contained in his statement. The evidence of the information that police had released did not include the details included in Mr Riley’s statement. The officer in charge of the investigation, Detective Adams, referred to the information that was released to the media (and the public) on 17 April 2015 which was the same day that Mr Riley made his statement. [81]

8. [165]

   CA was living at DP’s house in April 2015. During this time, Mr Jenkin also came to stay as he had lost his keys. CA gave evidence that he overheard a conversation between Mr Jenkin and DP wherein Mr Jenkin said that “Mark Dower had been hit so hard that his brains were exposed.” [82]

The finding of the body

1. [166]

   At 10.57pm on 16 April 2015, a call was made to Crime Stoppers advising:

2. [167]

   There is no dispute that the Crime Stoppers call, which indicates an anonymous source, was made by RS.

3. [168]

   Shortly before midnight on 16 April 2015, Mr Dower’s body was discovered in a state of decomposition and the police investigation began. It was shortly after this that Mr Riley contacted the police.

4. [169]

   In addition to the evidence of the witnesses, there was also a body of physical and forensic evidence. The Court and parties attended the scene and inspected the flat in which Mr Dower died, the laundry where his body was found, the point of view of a number of the witnesses, and a number of locations referred to in the evidence. [83] A large number of crime scene, forensic and autopsy photographs were tendered along with an interactive ISRAP’s presentation allowing the viewer to “virtually” move around various relevant locations. [84] There was expert evidence from a police officer who, amongst other things, specialised in the analysis blood stains and spatter. A number of charts were tendered showing where blood and other relevant items were located. [85] A biologist gave evidence and explained the findings when a number of items, including the blood stains were subject to DNA analysis. For the most part, the accused did not contest this body of evidence but gave evidence of the circumstances in which the physical evidence could be explained innocently.

Blood stains and DNA evidence

1. [170]

   Detective Sergeant Gregory Moon gave evidence of his findings and produced some charts and photographs demonstrating the location of various items of evidence. He was well qualified and gave evidence explaining the different types of blood stains and how such stains are made. [86] He examined the premises (including Mr Jenkin’s flat and the laundry) at 8.40am on 18 April 2015. He took a number of photographs and produced charts incorporating some of those images with the results of DNA analysis.

2. [171]

   Mr Moon produced a comparison chart demonstrating that the foot of the person recording the video on Mr Jenkin’s mobile ‘phone was consistent with the foot of the deceased. [87] I interpolate here that, during the course of the prosecution case, no concession was made that the telephone from which the video was extracted belonged to the accused. [88] Nor was there any concession that Mr Jenkin had taken the video or that it was his foot recorded in the video. The Crown was put to strict proof and called a number of police witnesses and other evidence to establish that the telephone seized from the accused on 8 April 2015 was the same telephone analysed by Senior Constable Yang who recovered the video. However, when the accused gave evidence it was apparent that there was no dispute that he took the video and that it depicted Mr Dower, Mr Turner and himself in Unit 13.

3. [172]

   Mr Moon was subject to criticism in cross-examination and counsel for the accused submitted that his evidence may be unreliable. In one respect, his evidence was shown to be incorrect. This concerned a series of marks on the door jamb of the bathroom, depicted in photograph 21 of Ex TT. Initially, he said that all of the marks except one were blood stains. [89] I studied the image overnight and formed the view that at least two of the marks Mr Moon identified as blood stains were in fact imperfections or chips in the paint. I asked him about this the next day: [90]

4. [173]

   It was only in the course of cross-examination by counsel for the accused that the officer acknowledged that this opinion was wrong and that marks he identified as blood stains were, in fact, chips in the paint. [91] This highlights the dangers of this kind of evidence. While I do not accept it is evidence that the law recognises may be unreliable for the purpose of providing a s 165 direction to a jury, I have treated the evidence with caution and a jury would have received a direction about the potential dangers of such evidence. However, I generally accepted this evidence and, for the most part, the evidence was not seriously in dispute. It is the inferences to be drawn from the evidence, and the explanations provided by the accused in the course of his evidence, that are controversial.

5. [174]

   A number of the blood stains located in the bathroom were established to be from the deceased to a very high degree of probability and, there being no dispute about the matter, I will refer to it as the deceased’s blood. The deceased’s blood was located in the bath, on both the internal and external shower curtains, and on the tiles around the bath. It was also located, in a smear or wipe pattern, in the doorway between the bathroom and the hallway/lounge room, on carpet in the lounge room and on a shirt located within the premises. In view of Mr Dower’s injuries, there was not a particularly large amount of blood located in Mr Jenkin’s flat. Many of the bloodstains were not analysed and there was some criticism of the investigation in relation to that matter. A spot of blood consistent with the DNA of Lisa Mara was located on a wall in the lounge room. Unsurprisingly, Mr Jenkin’s DNA was located throughout the premises and on various items. A potentially significant, individual, drop of blood spatter was located 1.75 metres above floor level on the tiles above the bath. However, this item was not subject to DNA analysis to determine whether it was Mr Dower’s blood.

6. [175]

   Overall, the findings were consistent with there being “more than one incident” in the bathroom. [92] Mr Moon said it was “not possible” for the blood stains found in the bathroom, including on both sides of the shower curtains, to be deposited at the same time or in the same event.

7. [176]

   In cross-examination, Mr Moon made a number of important concessions as to the innocent scenarios in which the blood may have been deposited, including the likelihood of post death “purge” of fluids from Mr Dower’s body and blood from the faeces in the bath. He also accepted that the wipe patterns of blood on and around the door jamb close to the floor could have been deposited when the body was moved. In evidence, Mr Jenkin gave innocent explanations for the physical evidence found at his flat.

Crime scene photographs and inspection of the scene

1. [177]

   The crime scene photographs of Mr Jenkin’s flat have to be interpreted with some caution for at least two reasons. First, it was not until the inspection of the premises that I gained any real understanding of the dimensions of relevant rooms (especially the bathroom and laundry). Both of those rooms were much smaller than I understood them to be from viewing the photographs. Second, it is clear that the flat was ransacked (by CA and others) after Mr Jenkin was arrested. Accordingly, it cannot be assumed that the photographs depict the state of the apartment when Mr Dower and Mr Jenkin were there together.

2. [178]

   The inspection also clarified why there was a five metre drop from a first floor window. The reason is that the property slopes away quite sharply between Block 4 (where Mr Jenkin lives) and Block 2 (the bedsits) and the external laundries where the body was found. I was also able to make observations of the points of view of various witnesses to determine whether the witnesses were able to see the things they claimed to have seen from the position where they said they made the observation.

3. [179]

   Four well qualified medical experts, including a forensic pathologist called by each party, gave evidence of the nature and extent of the injuries evident on post mortem examination. The extent of decomposition, the difficulties in timing the injuries, and the likelihood that a number of the injuries were caused when the body was dropped five metres to the ground, create complications in determining the cause of death. The accused contends that it cannot be established that the injuries evident during the autopsy caused the death of Mr Dower and that, even if this could be proved, it cannot be determined which particular injury (or combination of injuries) led to Mr Dower’s death. Accordingly, the prosecution could not exclude the possibility that the death was caused by injuries sustained before Mr Dower went to Mr Jenkin’s flat (by Jodie Pike or somebody else) and/or by injuries sustained when Mr Dower accidentally fell while inside Unit 13. In particular, the fall in the bath shortly before Mr Dower lost consciousness cannot be excluded as the immediate cause of his death.

4. [180]

   The following is a catalogue of findings and injuries observed either on post-mortem examination or CT scan:

5. [181]

   It should immediately be recognised that the number of injuries does not equate to the number of assaults or individual applications of blunt force; some of the injuries are likely to be the result of the same traumatic event. It should also be observed that, in many cases, it is impossible to know whether the injury was caused after death or, if it was occasioned before death, how long before death. However, at least some of the findings demonstrate with clarity that the injuries were caused before death. These include the finding of the tooth in the digestive system and the bruising (generally and in particular the bruises to the intercostal muscles).

6. [182]

   Dr Szentmariay performed the autopsy and examined the CT scan. He stated the cause of death to be “homicidal violence”. That is an unfortunate term, given that the decision as to whether homicide was committed is a question for the Court. However, the pathologist explained what he meant and said it was an expression frequently employed in the United States: [118]

7. [183]

   Dr Glen was an impressive witness and a vastly experienced radiologist. He interpreted the CT scan and gave evidence of the nature and possible cause of various bone fractures. He was of the view that Mr Dower was severely beaten before he died.

8. [184]

   Professor Griffiths was a specialised forensic orthodontist. He gave evidence about the tooth that had been knocked out, other teeth that were loose and the fracture to the alveolar bone. He said it would be a painful injury (“not pleasant”) and the injuries to the teeth and bone to which they are attached were likely to have occurred at around the same time.

9. [185]

   Professor Duflou is an extremely experienced forensic pathologist. He was called by the accused and reviewed the findings of the other doctors. He came to a number of different conclusions. He was unable to determine the cause of death. He questioned whether any of the individual injuries caused or substantially contributed to death. He identified a large number of injuries that could have been caused after death, particularly when the body was dropped from a height of 5.5 metres and in the course of administering CPR. He emphasised the difficulty in timing the injuries so that some of the injuries might have been caused before Mr Dower came to stay with Mr Jenkin. He disagreed with a number of Dr Szentamariay’s conclusions including the suggestion that the injuries to the fingers and hand indicated a “defensive injury”. A scenario was put to him relating to Mr Dower falling in the bath and his head coming into heavy contact with the hand rail and he explained the kind of injuries that could be caused in such a fall, although he said this was difficult to tell. In cross-examination Dr Duflou agreed that he did not discount the possibility of a third party inflicting a number of the injuries and that the injuries to the chest wall may have been a significant contributor to death.

10. [186]

    I am satisfied beyond reasonable doubt that Mr Dower’s death was not by natural causes, misadventure, or accident. I do not believe it is reasonably possible that the nature, extent and location of the injuries can be explained by a series of falls. I accept that some of the injuries may have been caused that way, but not the most serious of them. Nor do I accept, as a reasonable possibility, that the most serious of the injuries can be explained by reference to things that happened after Mr Dower died. Again, some of the injuries may have been caused after death, but the evidence of bruising and swallowing a tooth means that Mr Dower must have been alive for some time, at least hours, after he was injured. In reaching these conclusions, I have taken into account the opinions provided by the four expert witnesses. In particular, I have taken into account the evidence of Dr Duflou. However, contrary to the submission of counsel for the accused, [119] I do not approach the matter on the basis that I would accept Dr Duflou’s evidence where it is in conflict with that of the other experts. I do not accept that he was a more “impressive witness” than Dr Szentmariay.

11. [187]

    Approached in a piecemeal way, and only by reference to the medical evidence, a number of the injuries can be explained by reference to a fall or series of falls when Mr Dower was still alive and by mistreatment of his corpse thereafter. In particular, the fact that his body was dropped a distance of around 5 metres from Mr Jenkin’s flat may have caused a number of the injuries.

12. [188]

    However, the evidence taken as a whole satisfies me that many of the injuries were occasioned before death and were the result of unlawful violence. In particular, I am satisfied of the following matters:

13. [189]

    Putting aside that a number of the injuries that were almost certainly (based purely on the medicine) caused before death and unlikely to have been caused by an accidental fall or series of falls while Mr Dower was still alive, there were also a large number of other injuries. While it is possible these injuries were caused after death, or as a result of accidental falls, it is also possible they resulted from an assault or series of assaults in the days and weeks prior to death.

14. [190]

    Further, the impressive body of evidence given by the four doctors and the various opinions proffered by the experts is not to be considered in a vacuum. In other words, the medical evidence comprises just part, albeit an important part, of the case. I also have to consider the evidence of the other witnesses, the nature of the relationship between the men, the circumstances in which Mr Dower was in Mr Jenkin’s apartment, the things Mr Jenkin told others, the observations of those who saw Mr Dower before he went to Mr Jenkin’s unit and the things Mr Dower told other people in the weeks before he died.

Overview

1. [191]

   Before returning to the allegation that Mr Jenkin murdered Mr Dower, I will deal with the evidence the prosecution says supports a conviction on count 2 or, in the alternative, count 3. The prosecution also contends that this evidence can be used to support an inference that Mr Jenkin’s actions reflect a consciousness of guilt in relation to Mr Dower’s death.

2. [192]

   Mr Jenkin was in custody in relation to unrelated and irrelevant matters, when RS made the call to Crime Stoppers and Mr Dower’s body was located an hour or so later. He went into custody on 8 April 2015. Over the next several months, many telephone calls were intercepted and recorded by the authorities. Some of these were made from official corrective services telephones and it must have been known by the participants that these calls were being recorded. [127] Other calls were recorded pursuant to warrants directed to a number of telephones operated by Mr Cowan and/or Mr Jenkin. [128] It is common ground that Mr Jenkin had “contraband” telephones while he was in gaol. I gather only a small selection of the calls were tendered in evidence. It is unnecessary to refer to all of the calls, many of which are largely irrelevant, or only peripherally relevant, to the present proceedings.

Background

1. [193]

   The starting point to this part of the case is that RS is the only person who saw Mr Dower’s dead body in Mr Jenkin’s unit.

2. [194]

   The defence case is that she arrived at the unit shortly after Mr Dower died. It is the prosecution case that RS assisted in moving the corpse several days later. The defence case is that she may have thought she was doing this but that she actually moved stolen property. Mr Jenkin moved the body by himself early the following morning.

3. [195]

   On 13 May 2015, Mr Jenkin spoke to an unidentified man from an official gaol telephone. That man told Mr Jenkin that he had been visited by “[t]he jacks, wanting to know if I’d seen RS anywhere.” There was further discussion and Mr Jenkin observed “They’ll be monitoring me shit, you know what I mean.”

4. [196]

   On 25 June 2015, Mr Jenkin spoke to Mr Cowan on a gaol ‘phone. Mr Cowan said “I fuckin’ bumped into that RS” and “I’ll talk to you when I see you.”

5. [197]

   On 13 July 2015, Mr Jenkin spoke to Mr Cowan on a gaol ‘phone. When Mr Cowan mentioned “ RS”, Mr Jenkin said “I don’t want to talk about shit on the phone.” When Mr Cowan mentioned RS again, Mr Jenkin said “well keep talkin about the fucking idiot why don’t you, oh my god you, you fuckin’, you want to fuck me over do you?”

The ‘phone call on 17 July 2015

1. [198]

   On 17 July 2015 Mr Jenkin and Mr Cowan spoke via a contraband telephone. This conversation included the following: [129]

Three ‘phone calls on 25 August 2015

1. [199]

   On 25 August 2015 at 8.04pm Mr Jenkin spoke to PL. The conversation included a discussion about Mr Jenkin being charged “with some cunts murder” which arose about that [body] they found. Mr Jenkin asked “have seen that fucken RS cause I got word up here I’m supposed to be charged.” PL said “she’s still roaming around the fucken mongrel.” PL said “this RS slut needs fucken talking to by some cunt, because I can’t get hold of her anywhere.” [130]

2. [200]

   On the same night at 9.22pm Mr Jenkin spoke with Stuart Cowan, again on a contraband telephone. That conversation included the following: [131]

3. [201]

   There were two further calls between Mr Jenkin and Mr Cowan at 10.47pm and at 12.01am the following day. There were discussions about people talking out of school and rumours that were circulating.

4. [202]

   At 11.01pm, Mr Jenkin spoke to Stuart Cowan and DP. [132] It seemed the police had spoken with DP and Mr Jenkin asked him “who’s fuckin’, why they’ve sent ‘em to you, why, who, who, for what reason did they come to you though? Did they give you a reason?” DP replied “RS mate. Straight up …” Mr Jenkin replied “RS, yep?” and DP confirmed “…RS, yeah.” Mr Jenkin said “she hasn’t seen nothing or no-one” and DP replied “like the gossip on the street is she’s fuckin’ rolling over and fuckin’ doing backflips for ‘em”.

Mr Cowan’s actions around those calls

1. [203]

   There is evidence that a “hot shot” is a particularly powerful dose of drugs, usually heroin. There is evidence that RS was a heroin user or addict. There is evidence that PL and DF were heroin dealers.

2. [204]

   DF gave evidence that Stuart Cowan approached her seeking to purchase heroin: [133]

3. [205]

   SP gave evidence from which a strong inference is available that Mr Cowan was looking for RS: [134]

4. [206]

   Daryl Peterson gave evidence that on one occasion he was walking with RS in the Wollongong mall and they were approached by Stuart Cowan: [135]

The cases of the parties on counts 2 and 3

1. [207]

   The Crown case is that an inference can be drawn that Mr Jenkin and Mr Cowan entered into an agreement to murder RS by giving her an overdose of heroin. The agreement was made in the course of the two calls on 17 July 2015 and 25 August 2015.

2. [208]

   Pursuant to that agreement, Mr Cowan attempted to locate RS and to acquire heroin. These “overt” acts do not need to be proved as elements of the offence of conspiracy. However, the overt acts provide evidence of the existence of the conspiracy.

3. [209]

   The defence case is that there was no agreement reached and no solicitation. There was no need to kill her because she was a “street–working junkie cunt” who nobody would believe. Mr Jenkin was on drugs and simply rambling. Even if there is evidence of an agreement, it was put in closing submissions that Mr Jenkin “countermanded” the direction to kill RS when he said “end of the day we’ll come and do it and then we’ll fuckin’ sort this cunt out”.

4. [210]

   The prosecution submits that a number of Mr Jenkin’s actions at the time of and after Mr Dower’s death are inconsistent with his innocence. His actions do not prove his guilt, and in particular cannot support the murder charge, but I accept they form an important part of the circumstantial case suggesting some significant malfeasance on his part.

5. [211]

   The failure to call an ambulance, or to seek medical assistance, or even to ask a neighbour for help, in Mr Dower’s final days or hours suggests that Mr Jenkin played some part in the deterioration of Mr Dower’s health.

6. [212]

   Similarly, the failure to notify any authority that there was a dead body in his unit is not the action of an innocent man. Further, the manner in which the body was disposed of, and hidden in a laundry not associated with his unit in the housing complex, is suggestive of some wrongdoing.

7. [213]

   Thereafter, the things he said to other people were, at least, strange. I accept the body of evidence that he told different people inconsistent things about the circumstances of Mr Dower’s death. He told some people that Mr Dower had fallen and hit his head. It is alleged that he told others that he had struck Mr Dower. He told a number of people that Mr Dower was losing control of his bowels. His alleged motive in doing this, to see who was discrete and who speaking out of school, is again inconsistent with somebody who had done nothing wrong.

8. [214]

   Finally, the Crown relies on the evidence in support of the conspiracy and soliciting the murder of RS as demonstrating a consciousness of guilt in respect of the homicide of Mr Dower. There was a legal discussion about this in advance of the trial in the context of Mr Jenkin’s application to sever counts 2 and 3. Following that discussion, the Crown accepted that the evidence could not be used to support murder (as opposed to a charge of manslaughter). [136]

9. [215]

   I have exercised caution in considering this evidence said to demonstrate a consciousness of guilt. It is evidence that can easily be misused. People react in different ways to circumstances such as those confronting Mr Jenkin around the time of Mr Dower’s death: [137]

10. [216]

    This is a particular kind of circumstantial evidence and must be approached with real caution. It is only where the only reasonable inference available is that the evidence demonstrates a consciousness of guilt that it can properly be taken into account. If there is any other reasonable inference the evidence should be disregarded.

11. [217]

    The Crown also submitted that certain things said by the accused constituted lies that might demonstrate a consciousness of guilt. In the course of argument, the Crown seemed to accept that the subject of those lies formed part of the accused’s defence and that there was circularity in the reasoning process. In any event, I have not taken into account any alleged lie told by the accused as evidence capable of demonstrating a consciousness of guilt.

12. [218]

    Mr Jenkin gave evidence. He was not required to do so. Having chosen to give evidence, his evidence is to be evaluated in the same way as the other witnesses. I can accept it, or reject it, in whole or in part. However, by giving evidence Mr Jenkin did not undertake to establish anything, let alone his innocence. Even if I rejected his evidence, it remains for the prosecution to prove his guilt beyond reasonable doubt. An assessment of his evidence should include acknowledgement that he was not required to venture into the witness box.

13. [219]

    Mr Jenkin’s evidence is inconsistent in many significant respects with a large number of other witnesses in the case. While some of these witnesses had significant credibility problems, others gave evidence about which I have little doubt and which cannot stand with the evidence of the accused. It is not a matter of preferring the evidence of one witness over that of the accused, let alone rejecting Mr Jenkin’s evidence altogether because I accept another witness’s evidence in respect of such an inconsistency or conflict. Rather, it forms part of the fact finding process leading to the ultimate question of whether the prosecution has proved its case beyond reasonable doubt.

14. [220]

    Mr Jenkin gave evidence over four days and it is impossible to summarise all of it.

15. [221]

    The thrust of his evidence is that he was a protector of Mark Dower who was victimised by other members of the Mangerton community. In particular, Jodie Pike and (perhaps) Mark Spicer. He said he intervened more than once on Mr Dower’s behalf. He gave two specific examples when he essentially threatened Mr Pike when he became aware that Mr Pike had assaulted Mr Dower.

16. [222]

    On 23 March 2015 (not 22 March 2015), he went with Mr Turner to Jodie Pike’s unit to speak to Mr Dower. This was, initially, to ensure that Mr Dower was available to attend court on 24 March 2015 in relation to the goods in custody charge. Mr Dower would be able to establish that the $1,690 seized by police was Mr Dower’s money and not the proceeds of drug transactions or otherwise unlawfully obtained. When he arrived he saw that Mr Dower had a number of injuries. He asked Mr Dower if he wanted to stay at his place and Mr Dower readily agreed. He denied the implication that Mr Dower was forced to come to his premises.

17. [223]

    Once he, Mr Turner and Mr Dower were inside Unit 13, Mr Dower acknowledged that Pike had assaulted him. Mr Jenkin returned to Pike’s unit to confront him. He had a conversation with Dale Bitton: [138]

18. [224]

    This narrative is inconsistent with the evidence of Dale Bitton, Jodie Pike and Paul Turner.

19. [225]

    Mr Jenkin noted a number of injuries on Mr Dower. He observed darkness under Mr Dower’s right eye, a lump on the top of his forehead below his hairline, swelling and bruising in the corner of his mouth and a blue, black and red lump on his left ear with fresh bruising behind the ear. On the walk back to his unit, Mr Jenkin described Mr Dower as walking stiff-legged “like a thunderbird”. Later, when Mr Dower was in the bathroom without his shirt, Mr Jenkin observed “old” brown and yellow bruising to his back. At least some, and possibly all, of those injuries are visible on the video taken on Mr Jenkin’s mobile telephone.

20. [226]

    Mr Jenkin denied Paul Turner’s evidence that he slapped or otherwise assaulted Mr Pike while they were sitting in the lounge room. He said that after they arrived at the unit, Mr Dower lost control of his bowels and it was in that context that the video was taken on the mobile telephone. Mr Jenkin gave evidence that the video was taken on 23 March 2015 and not, as the data on the telephone suggested, 22 March 2015. He was quite certain of this because he went to Court the next day.

21. [227]

    He said that he went to Port Kembla Local Court the next day (24 March 2015) but that Mr Dower was in no state to attend court. He said that Mr Turner remained with Mr Dower throughout the day. Mr Jenkin remained in the Port Kembla area until the early evening and telephone cell tower records tend to confirm this. [139] Those records show that his telephone was connecting through the tower at or near Port Kembla Steelworks between about 4:30pm and 8pm. He said he went to the Port Kembla Top Pub after court.

22. [228]

    When he returned to Unit 13 there were four people inside: Mark Dower, Paul Turner, Aleta Serisier and AR. Mark Dower fell face first to the ground. Mr Jenkin tried to break his fall but was unsuccessful. Mr Jenkin later said that Mr Dower’s head bounced at least 2 or 3 feet off the floor. [140] Mr Dower was injured and Mr Jenkin wanted to send Mr Dower to hospital. There was talk of dragging him on to the landing so that an ambulance could take him to hospital. However, Mr Dower begged him not to call an ambulance. None of the other witnesses said to be present gave any evidence of this incident.

23. [229]

    Over the coming days, Mr Jenkin essentially nursed Mr Dower whose state of health varied. Sometimes he was lucid and other times he was unable to speak or be understood. Mr Jenkin described an occasion when he returned from the laundry to find that Mr Dower had fallen onto or near a wheely bin that was inside the unit. Whenever there was talk of seeking medical assistance, “Marky” (as Mr Jenkin mostly called the deceased when giving evidence) begged him not to. Mr Dower was afraid to go to hospital because he had previously been subject to involuntary admission to a psychiatric hospital and was afraid of being committed. Mr Jenkin respected his wishes. He washed his clothing, fed him and assisted to bath him. Sometimes Mr Dower was able to look after himself but at other times he required Mr Jenkin’s assistance.

24. [230]

    Mr Jenkin said, at the time, he thought Mr Dower was just drunk but he now realised that Mr Dower’s behaviour was consistent with him having a pre-existing subdural haemorrhage. Two passages of Mr Jenkin’s evidence exemplify his account on this issue. The first is: [141]

25. [231]

    The second is: [142]

26. [232]

    Mr Jenkin was uncertain of the date that Mr Dower died. Initially he said it could have been Friday 27 March or Saturday 28 March 2015. [143] Ultimately, he thought it was late on the night of Friday 27 March 2015. [144] He said he heard a “big bang” and went to the bathroom to find that Mr Dower had had an awkward and heavy fall in the bath. He was lying face down in the bathtub with his shins against the bath. His face was near a handrail on the wall of the bathroom and, from blood in that area, it seemed that Mr Dower had struck the handrail on the other side of the bath. The position in which he found Mr Dower, and the handrail, is depicted in Ex B, photograph 120. [145] Mr Jenkin was able to have a conversation with Mr Dower. He said that Mr Dower again pleaded with him not to call an ambulance and asked him to “stitch him up”, using the “butterfly clips” in the first aid kit.

27. [233]

    Mr Jenkin searched for the first aid kit and when he returned to the bathroom he touched Mr Dower’s head and “his skull moved”. He said at other stages that (two) blood clots came out of the cut on Mr Dower’s head. Mr Jenkin again said he would ring the ambulance and Mr Dower said “please no, please no please no, like he always does.” When he got no response Mr Jenkin said again that he would ring the ambulance and Mr Dower said “don’t do it, don’t do it.”

28. [234]

    Mr Dower then lost consciousness and lacked the vital signs of life. Mr Jenkin was thoroughly trained and experienced in first aid and attempted to resuscitate Mr Dower. He heard cracks in the course of administering CPR. [146] He did this while Mr Dower was lying flat on his back in the bath tub. He tried to save Mr Dower’s life for around 20 minutes. He could not find a telephone to call an ambulance. He realised that Mr Dower was dead: [147]

29. [235]

    Mr Jenkin said he didn’t know what to do and that he “rang somebody and told them what had happened.” He could not remember who he rang. He said that about 15-20 minutes later, RS arrived looking for AR and drugs. He provided the following account: [148]

30. [236]

    This is an odd account because it seems unlikely that Mr Jenkin would have thought Mr Dower was walking out of the bathroom when he was “100 per cent” certain that he was dead 20 minutes earlier.

31. [237]

    RS stayed at the unit for a while and at some stage used the bathroom. Mr Jenkin tried to stop her and suggested she “go outside and piss”. He told her the toilet was blocked and when she persisted he told her somebody had died in the bathtub 20 minutes ago and he didn’t want her to see it. Eventually, he let her use the toilet but pulled the shower curtains around so she could not see the body and he “watched her piss”. Mr Jenkin said that he told RS about the events of the last few days including that Mr Pike had bashed Mr Dower, that he couldn’t take Mr Dower to court and a number of other things consistent with the evidence he gave the Court.

32. [238]

    Mr Jenkin gave the following explanation for not contacting the police: [149]

33. [239]

    Mr Jenkin gave a detailed account of an earlier incident with Mr Pike in which he intervened on Mr Dower’s behalf. He gave evidence of losing his keys when he was assaulted by Mr McKay and going to DP’s place. He denied the admissions attributed to him by CA and SM.

34. [240]

    Mr Jenkin said that on Good Friday 3 April 2015, he and RS attended his premises and removed some property from his unit. He gained access to the flat by accessing the vacant Unit 12 (next door to his unit) and climbing into his unit. He denied that the body was moved at that stage. He said RS offered to help him move the body because she was “the only person that knows he’s in there.” However, he did not accept her offer. He gave evidence of the property that was actually moved on Good Friday. [150] He said Mr Dower’s body was still in the bathroom: [151]

35. [241]

    In any event, the body was not moved at that time. He said he returned by himself at 2am the next morning (that is 4 April 2018). He said his intention was to take the body to the hospital so that it could be found and Mr Dower’s relatives notified of their loved one’s death. [152] He gave a detailed account of how he accessed the unit, moved the body around, tied it up and placed it in a silver surfboard bag. He explained how some of the blood stains may have come to be in the unit as the body was moved from the bathroom. Mr Jenkin’s intention was to move the body along a plank back to Unit 12 and then carry it out the front door of that unit. However, in doing so the body accidentally fell: [153]

36. [242]

    Mr Jenkin did not see how the body landed or whether it struck anything on the way down. He waited in his unit for 5-10 minutes “making sure people didn’t hear that”. He then went downstairs and waited for a further 15 minutes to make sure none of the neighbours came out to see what he was doing. He then moved the body to the laundry. His plan was to take the body to the hospital and attempted to get a car (a Subaru Hatchback) from PL but the days went past and he was arrested on 8 April 2015 and remained in custody thereafter.

37. [243]

    Mr Jenkin went on to provide an explanation of the gaol telephone calls. He denied there was any serious plot to kill RS. He was on “bupe, smoking it, snorting it”. (The evidence was that bupe is a kind of opiate or opiate substitute.) He later said he was “on pot and smashed”. He could not recall the conversations and did not think Mr Cowan would take the conversations seriously. He acknowledged that the person being referred to as making up stories was RS. Asked what he meant when he said “fuck just off this cunt” he replied “probably getting rid of the cunt”. However, he said he was “not expecting that to happen”. He then gave the following evidence: [154]

Cross-examination

1. [244]

   Mr Jenkin was cross-examined at some length. It was obvious he found the experience challenging and stressful but he generally maintained a consistent account.

2. [245]

   His evidence was often non-responsive and discursive and this applied equally to his evidence in chief. There was a tendency towards grandiosity and exaggeration. For example: [155]

3. [246]

   And: [156]

4. [247]

   And: [157]

5. [248]

   And: [158]

6. [249]

   Mr Jenkin’s mood changed quite noticeably throughout his evidence. At times he was extremely quiet, almost sullen. At other times he became very animated, aggressive and argumentative. When he referred to warning Mr Pike not to touch Mr Dower (something that happened six months before Mr Dower’s death), his tone in giving evidence was quite menacing: [159]

7. [250]

   These are just a few examples. Mr Jenkin’s evidence is littered with other similar responses.

8. [251]

   He referred to the deceased as “Marky” throughout most of his evidence although at one stage he referred to him as “this cunt” (as he had done in a number of the recorded telephone calls) but then corrected himself: [160]

9. [252]

   He gave remarkable detail of conversations including conversations he said had with the deceased: [161]

10. [253]

    Mr Jenkin’s account that the money subject of the goods in custody charge was Mr Dower’s money, rather than money that had been taken from him by Mr Jenkin was challenged. It was suggested that it was inconsistent with an intercepted telephone conversation he had with his father in which Mr Jenkin said “the person who was with me gave me the money”. [162] It was suggested that Mr Jenkin changed his account to distance himself from the money and from the suggestion that he was, in essence, extorting money from Mr Dower.

11. [254]

    An unusual aspect of the manner in which Mr Jenkin gave evidence was that he sometimes laughed when particular propositions were put to him. In the most noticeable example, Mr Jenkin corrected himself: [163]

12. [255]

    And: [164]

Inconsistencies with other witnesses

1. [256]

   Mr Jenkin’s account was, in many respects, at odds with the other evidence in the case. To take a few examples:

2. [257]

   Mr Jenkin suggested the investigating police had turned witnesses against him and placed improper pressure on them to give evidence inculpating him: [167]

3. [258]

   It was put to Mr Jenkin that his “version of events is a complete fabrication; you’ve contrived the lot of it” and he denied that proposition strongly.

4. [259]

   In re-examination, he partially waived privilege to allow a redacted version of instructions taken from him on 20 June 2016 to be tendered as Ex 19. This provided a generally consistent account of the circumstances of Mr Dower’s death.

5. [260]

   I turn to some findings of fact. I have already indicated some of my findings in the course of this judgment and I will attempt not to repeat those. The judgment should be read as a whole. I will indicate further findings when I come to determine whether the Crown has proven the individual offences beyond reasonable doubt.

Mr Jenkin’s evidence

1. [261]

   Having considered the evidence of Mr Jenkin in the light of all of the evidence, I am satisfied beyond reasonable doubt that it was largely false. Putting aside Mr Jenkin’s demeanour, which was uninspiring, the evidence had the hallmarks of being constructed around the evidence that could scarcely be contested. Where inculpatory evidence came from witnesses, Mr Jenkin said they were liars and/or that the investigating police pressured them into saying things that were untrue. While there was evidence that one officer gave Lisa Mara warning that her evidence of dates was wrong, and I accept that the police used some leverage in extracting information from witnesses who were reluctant to assist, it is not believable that so many witnesses were corrupted into giving false evidence against Mr Jenkin. Of course, Mr Jenkin does not have to prove why the witnesses may have given false (or erroneous) evidence let alone that there was a conspiracy orchestrated by investigators. [168] However, the accumulation of the evidence of the witnesses and the disparate sources of the evidence relied on by the prosecution, is a strong indicator that his evidence was not true. In coming to these conclusions, I have kept in mind the generally consistent instructions that Mr Jenkin gave to his lawyers on 20 June 2016 in relation to Mr Dower’s death.

Whether Mr Dower was detained, and how long he was in Mr Jenkin’s flat

1. [262]

   I am satisfied that Mr Dower was in Mr Jenkin’s unit from at least 22 March 2015. I am satisfied that the video recorded on Mr Jenkin’s telephone was recorded on 22 March 2015 in accordance with the date recovered from the telephone and not on the 23 March 2015 as Mr Jenkin said he believed. Mr Jenkin may honestly believe the video was taken a day later but I am satisfied it was not. There was no evidence to suggest the data on the ‘phone was corrupted in such a way that it would provide an erroneous date. This finding has some significance in that it supports Mr Turner’s account that Mr Jenkin did not attend court the following day, and that he (Turner) left on 23 March 2015 and not on the day that Mr Jenkin attended Court (24 March 2015).

2. [263]

   I am not satisfied beyond reasonable doubt that Mr Dower was detained in the sense that he was literally locked in the unit for five days or so, or that he was under guard throughout that period. However, I am satisfied that the nature of the relationship between the men was such that Mr Dower felt unable to leave. Detention is not an essential element of the offences with which Mr Jenkin is charged.

Exclusion of Jodie Pike as the perpetrator

1. [264]

   Because the case is a circumstantial one, the prosecution must exclude every hypothesis inconsistent with Mr Jenkin’s guilt. A particular inference that the accused says cannot be excluded is the possibility that the injuries that caused Mr Dower’s death were caused before he moved away from Jodie Pike’s flat. In particular, the accused relies on evidence that both Mr Pike and Mr Mark Spicer assaulted Mr Dower. Throughout his evidence, the accused referred to the possibility that Pike caused Mr Dower’s death.

2. [265]

   I accept that Mr Pike and Mr Mark Spicer and possibly others assaulted Mr Dower in the past, and possibly in the days prior to Mr Jenkin taking him in at Unit 13. I accept that the evidence shows that the deceased would sometimes, perhaps often, fall over and hurt himself. I also accept that Mr Dower had a number of injuries when he left Mr Pike’s place to go to the flat occupied by Mr Jenkin. However, the question is whether the Crown has excluded (or negatived) the possibility that these assaults and injuries were the cause of death, rather than injuries inflicted on him after he moved in with Mr Jenkin.

3. [266]

   The evidence that Mr Pike and Mr Mark Spicer assaulted Mr Dower came from the witnesses themselves and/or from Dale Bitton. None of the witnesses suggested that these assaults were other than minor incidents between drunkards.

4. [267]

   Dale Bitton, whose evidence was otherwise criticised by the accused as unreliable, gave the strongest account of the assaults by Mr Pike on Mr Dower. He said “Jodie was a little bastard to him. Jodie used to pick on him, and steal his money and hit him.” He saw “slaps. He slapped him in the face.” [169] He said he never saw any injury as a result of these slaps. Mr Bitton denied that Mr Dower had injuries when he left Mr Pike’s place. He denied specifically that he had a big lump on the top of his left forehead, “fresh bruising to the side of his ear” and “a right eye that was black in the corner of his mouth.” [170] Mr Bitton denied that he told Mr Jenkin “Jodie Pike’s been bashing him for days. He jumped on his head.” [171]

5. [268]

   Once his extensive mental health records were produced on subpoena, Mr Bitton was recalled for further cross-examination. A number of things he said at committal were put to him. He was reminded that he told the Local Court that “[Jodie Pike] used to slap Mark around the head with a hand and slug him.” He denied that this was a reference to striking with a closed fist. He said “it was always open hand, and pushed him and punched him in the arm and in the leg.” He was also reminded of evidence he gave that “Jodie took [Mark Dower] in to rob him”. He agreed he had said that and confirmed that that Jodie Pike used to steal from Mr Dower. He was cross-examined about evidence he gave that “he used to slap Mark around the head with a hand and slug him” and he said: [172]

6. [269]

   Jodie Pike was asked if he had seen Mr Dower hit by anyone and he said that he saw a “couple of people hit him, but they slapped him that’s all”. He was asked who hit Mr Dower and he replied: [173]

7. [270]

   In cross-examination, he confirmed that Mr Dower often had scratches and bruises on him from falling around and (in my words) from his life as an itinerant alcoholic. It was put to him that he used to “slap Dower about, didn’t you?” and he replied “I slapped him a couple of times, only because he slapped me.” He agreed that he punched Mr Dower to the arm and leg but not to the body. He denied assaulting Mr Dower over an electricity bill. At this point the evidence is confusing (partially because there are three Marks in the case – Mark Spicer, Mark Jenkin and Mark Dower): [174]

8. [271]

   Mr Pike’s evidence on this subject was inconsistent and difficult to understand. He was recalled once his criminal history was produced by the Commissioner of Police. [175] He initially said that he had no record for violence but was shown an entry on his criminal record that disclosed an offence of assault police in 1991. His response was: “I can’t remember back that far. It was years ago because I have been out of strife for over 20 years.” [176] In relation to the injuries Mr Dower had when he left Mr Pike’s unit, he gave the following evidence: [177]

9. [272]

   Mark Spicer also gave evidence in relation to whether he had assaulted Mr Dower. In cross-examination, he denied punching Mr Dower and agreed that this would be “out of character”. He was asked if he had any convictions for assault and replied, rather memorably: “No, I’ve raised five children successfully.” [178] Mr Spicer’s criminal history was also disclosed late and he had to be recalled. It emerged he had two convictions for assault and that at least one of them involved beating one of the children to whom, presumably, his earlier answer related. Mr Spicer became very defensive when cross-examined about his criminal record but did not deviate from his denial of assaulting Mr Dower. However, like Messrs Pike and Bitton, his evidence must be scrutinised carefully because he is plainly an unreliable historian as a result of his chronic alcoholism. His denial of having a record for assault was plainly false.

10. [273]

    Jodie Pike presented to the court as an ineffectual, small, thin man with a timid and docile disposition. I have little doubt that his personality is different outside the foreign environment of a court room and when he has consumed vast quantities of liquor. It is clear that Messrs Pike, Spicer and Dower spent a good deal of time drinking together and were, in this context, involved in physical altercations. However, there is no direct evidence that Mr Dower ever suffered any serious injury as a result of these skirmishes and the circumstantial case supporting that proposition is wafer thin. The only evidence that Mr Pike “stomped” on Mr Dower’s head comes from Mr Jenkin and is based on what he says he was told by Mr Bitton. Mr Bitton denies both saying that and ever seeing Mr Pike assault Mr Dower in a serious way.

11. [274]

    I am satisfied beyond reasonable doubt that any assaults by Mr Pike were of a minor nature and that Mr Dower would not have died as a result of the injuries he had when he left Mr Pike’s residence.

Finding of unlawful assault(s) by the accused

1. [275]

   Based on the whole of the evidence I am satisfied beyond reasonable doubt that at some time between 22 and 28 March 2015 Mark Jenkin unlawfully assaulted Mark Dower while Mr Dower was staying at Unit 13, 4 Crana Place Mangerton. The major items of evidence that leads me to that conclusion are:

2. [276]

   I am unable to determine the exact number and nature of the assaults, or precisely when they occurred. I am satisfied that there were at least two such assaults based on the admissions made to NB and SM. Those admissions suggested two different precipitating events (or motives) for the assaults. One was that Mr Dower had made a mess when he lost control of his bladder and/or bowels. The other was that Mr Jenkin was angry because he was unable to use Mr Dower’s keycard. This suggests (at least) two separate assaults, likely some days apart.

Findings as to falls in Mr Jenkin’s unit

1. [277]

   I reject (beyond reasonable doubt) Mr Jenkin’s evidence that Mr Dower fell face first to the floor in the presence of Mr Turner, AR and Ms Serisier. While I would be reluctant to act on the evidence of either Mr Turner or AR if standing on its own, the fact is that none of the three people said to be present gave any evidence of this incident. Ms Serisier was a friend of the accused and her evidence was believable. It is not reasonably possible that the incident described by Mr Jenkin occurred and that she forgot about it. There were a number of memorable details in the incident as described by the accused. I do not accept that Ms Serisier’s evidence that part of the version put to her “rang a bell” constituted a real or meaningful concession that the incident might possibly have occurred. In respect of all the details put to Ms Serisier, she said she could not recall such a thing happening and her final answer in cross-examination was “I don’t recall any of it”.

2. [278]

   I accept the possibility that Mr Dower fell in the bath at some stage and possibly towards the end of his time with Mr Jenkin. However, based on the admissions made by Mr Jenkin to SM, I am satisfied that any such fall was associated with one of the assaults.

CPR

1. [279]

   I reject Mr Jenkin’s account of performing CPR. Nothing in his conduct before or after death suggested any real concern for Mr Dower. His version of events in this regard lacked any ring of truth and appeared to be contrived to fit in with the medical evidence concerning rib and sternum fractures.

Moving the body

1. [280]

   It may not strictly be necessary to determine the factual conflict as to when the body was moved. However, I accept RS’s evidence and reject the accused’s account. RS called Crime Stoppers soon after Mr Jenkin was taken into custody and correctly identified the location of the body. Mr Jenkin’s account of going back later and the details he provided, including saying a prayer after he dropped the body and apologising to the corpse, is not credible.

Causation

1. [281]

   I am satisfied beyond reasonable doubt that the injuries occasioned in these assaults caused the death of Mr Dower, in the sense that they substantially contributed to his death. This finding is based on:

2. [282]

   From the above findings, it will be seen that I am satisfied beyond a reasonable doubt that a deliberate act of the accused caused Mr Dower’s death.

3. [283]

   The difficulty for the Crown is determining what that act was and, more importantly, whether the act causing death was accompanied by an intention to cause grievous bodily harm. The Crown does not contend that Mr Jenkin ever formed an intention to kill Mr Dower. The evidence would not allow for such a finding and an intention to kill is contrary to the motives attributed to Mr Jenkin, namely, to extort money from Mr Dower and to have Mr Dower provide support for his case that he did not come by the $1690 (subject of the goods in custody charge) illegally. The prosecution submits that the nature of the injuries gives rise to an inference that the accused assaulted Mr Dower with such force and severity that he must have formed an intention to inflict grievous bodily harm.

4. [284]

   I accept that the Crown does not have “to identify a particular act which caused death where an accused has committed a series of acts, such as a long course of beating, where the fatal kick or blow cannot be identified.” [179] I also note that this is not a case like Lane v The Queen where there are two identifiable acts that may have caused death and the tribunal of fact must be satisfied (in the case of a jury, unanimously) of the particular act and the associated intention. [180]

5. [285]

   However, this is not a case of a continuous beating or, at least, I am not satisfied that it is. Rather, it is a case where one or more assaults occurred intermittently over several days. It is not sufficient for the Crown to establish that at some stage in that period the accused formed an intention to cause grievous bodily harm. The intention must co-exist with one or more of the acts causing death. It is possible (without making a finding beyond reasonable doubt) that when one or more of the assaults occurred, Mr Jenkin intended to inflict grievous bodily harm. However, the Crown must prove that the injuries occasioned in that assault (or those assaults) were a substantial contributor to death. By way of example, when the injury to the mouth occurred, it might be inferred that there was an intention to inflict grievous bodily harm. However, as serious as that injury was, it cannot be established that it caused or substantially contributed to death.

6. [286]

   Because of the difficulties and complications in the medical evidence, I am not satisfied beyond reasonable doubt that Mr Jenkin had an intention to inflict grievous bodily harm at the time he committed the act or acts that caused Mr Dower’s death.

7. [287]

   I accept that it is also open to the Crown to prove murder in this case by means of an omission (to obtain medical treatment) coupled with a reckless indifference to human life. [181] I accept Dr Szentmariay’s evidence that the failure to seek medical assistance was a significant contributing factor to death. However, to prove murder in this way, the Crown must establish that the accused foresaw the probability of death. [182] The High Court has said that the reason reckless indifference in murder requires foresight of the probability of death (as opposed to the possibility which is the case in other forms of recklessness) is that the mens rea for murder based on recklessness must possess a “near moral equivalence of intention to kill or cause grievous bodily harm.” [183] Further, the realisation that death was a probable consequence of a failure to obtain medical treatment must exist at a time when medical treatment might have prevented Mr Dower’s death.

8. [288]

   Again, because of the complications surrounding the medical evidence, it is impossible to establish beyond reasonable doubt the point at which Mr Jenkin would have realised that Mr Dower would probably die (assuming that he ever realised that).

9. [289]

   I am not satisfied beyond reasonable doubt that the Crown has established murder by an omission accompanied by a reckless indifference to human life.

10. [290]

    It may be that Mr Jenkin did the act causing death with an intention of inflicting grievous bodily harm and that he is guilty of murder. However, as I said at the outset, the standard of proof is extremely high and Mr Jenkin must be given the benefit of any reasonable doubt. In this case, in spite of my suspicion that he is guilty of murder, I have a reasonable doubt as to his state of mind at relevant times and whether he either intended to inflict grievous bodily harm or realised that Mr Dower would probably die if he did not receive medical attention.

11. [291]

    For those reasons, I find Mr Jenkin not guilty of murder.

12. [292]

    The Crown seeks to prove the alternative charge of manslaughter in two ways. I am satisfied beyond reasonable doubt that it has done so.

13. [293]

    In particular, I am satisfied beyond reasonable doubt that:

    1. (1)

       The accused did a voluntary act or acts, namely assaulted Mr Dower on one or more occasions between 22 and 29 March 2015.

    2. (2)

       The injuries sustained in this assault, or these assaults, caused Mr Dower’s death in the sense that they were a substantial cause of his death.

    3. (3)

       The act was, or acts were, unlawful acts. There is no suggestion of self-defence or any other matter that would render lawful the application of force to Mr Dower.

    4. (4)

       The act or acts carried with them an appreciable risk of serious injury.

14. [294]

    Further, I am satisfied beyond reasonable doubt that:

    1. (1)

       Having assaulted him and seen his injuries, Mr Jenkin owed Mr Dower a legal duty of care.

    2. (2)

       The failure to seek medical assistance constituted a breach of that duty of care.

    3. (3)

       The failure to seek medical treatment was a significant contributing factor to Mr Dower’s death.

    4. (4)

       The extent of the departure of the standard of care to be expected was so gross that it warrants criminal punishment.

15. [295]

    For those reasons, I find Mr Jenkin guilty of manslaughter.

16. [296]

    I am satisfied beyond reasonable doubt that Mr Jenkin and his stepbrother Mr Stuart Cowan reached an unlawful agreement to kill RS. There is no other reasonable interpretation of the conversation of 25 August 2015.

17. [297]

    There was a clear discussion that RS might die from a heroin overdose and that this, in a heroin addict, might be seen as “shit happening” or a “misadventure”. There was a direction from Mr Jenkin that Mr Cowan “hot shot this cunt” so that “she’s really not breathing when she fuckin' leaves.”

18. [298]

    I reject (beyond reasonable doubt) the suggestion in Mr Jenkin’s evidence that the reference to her “leaving” demonstrates that there was no intention that she be killed. Such an interpretation cannot stand with the words “not breathing”.

19. [299]

    I also reject beyond reasonable doubt the suggestion in counsel’s address that Mr Jenkin “countermanded” the agreement to kill RS when he said “we’ll come and do it” and “we’ll fuckin’ sort this cunt out.” To withdraw from a conspiracy requires an unambiguous repudiation of the agreement. [184] There is no evidence capable of raising a reasonable doubt that Mr Jenkin withdrew from this agreement. He spoke with Mr Cowan twice again on the evening of 25 August 2015 (or shortly after midnight) and in neither of those conversations is there any suggestion that he had called off the agreement.

20. [300]

    I am satisfied that Mr Jenkin attempted to assist Mr Cowan to find a source for the heroin and that Mr Cowan approached DFin an attempt to purchase the heroin. I am also satisfied that Mr Cowan attempted to locate RS. This conduct constitutes the kind of overt act that proves the existence of the unlawful agreement and the intention of the parties that the unlawful purpose of the agreement would be completed.

21. [301]

    I am satisfied at the time he entered the agreement that Mr Jenkin intended that the unlawful purpose of the conspiracy (to murder RS) would be carried out.

22. [302]

    For those reasons, Mr Jenkin is guilty of the conspiracy to murder RS.

23. [303]

    Accordingly, I return the following verdicts:

    1. (1)

       In respect of count 1:

    2. (2)

       In respect of count 2:

24. [304]

    Upon those verdicts the accused is convicted of manslaughter and conspiracy to murder.