DPP v Jensen [2007] VSC 77

Supreme Court of Victoria|2007-02-23|Before: OSBORN J

CRIMINAL LAW - Evidence - Defence objection to prosecution not calling brother of the accused as a witness where named on presentment - Prosecution formed opinion that brother was not a witness of truth and could not be relied on to give truthful or reliable evidence - Where defence not wishing to call brother as a witness of truth but to attack him as a liar - The Queen v. Apostilides discussed - Application by defence that either adverse comment be directed to the prosecutor concerning the decision not to call brother as a witness; to stay the trial until the Crown indicates it is willing to call brother as a witness; or for judge to call brother as a witness himself refused.

"Douglas Jensen stands accused of the murder of his father, Marius Jensen, who died from a gunshot wound to his head suffered at his farm, near Hamilton, on 2 February 2000. ...

Douglas Jensen lived at the farm and was present at the farm at the time of his father's death. The deceased died in the kitchen of the farm house. A modified shotgun which had been converted to fire .38 calibre bullets was found by his side on the kitchen floor. The Crown case is that Douglas Jensen fired the fatal shot and then interfered with the scene in order that it appear that the death had been a suicide.

The accused is one of two brothers. His brother Colin Jensen was not living at the farm when his father died. He had been excluded from the property as a result of intervention proceedings taken against him by his father about eight months before his death. Similar proceedings had not been taken against the accused, Douglas Jensen, but the Crown seeks to establish that the relationship between the deceased and the accused was itself one of hostility and that the deceased had not conducted himself in the manner consistent with his intending to commit suicide. Colin Jensen had also been arrested by police investigating the death of Marius Jensen, but, after being interviewed, no charge was laid against him.

The accused man gave an account to police that he had been on the property when he heard the fatal shot and had gone to the door of the kitchen, but did not enter the kitchen. He said that he saw his father slumped on the kitchen floor, obviously dead. (On the Crown case, Douglas Jensen gave conflicting accounts as to precisely where he had been when he heard the shot.) The accused told police that having been unable to get the telephone to work at the house, he then drove some eight kilometres to Hamilton Police Station where he reported that his father had committed suicide. He then returned to the scene, accompanied by police officers. The accused told police that he had been the only other person present at the property at the time of the death.

The Crown case relies on circumstantial evidence. Save for the brief outline stated above, it is unnecessary to further elaborate the evidence on which the Crown relies in proof of murder. For present purposes it is sufficient to say that if the Crown proves beyond reasonable doubt that the death was not suicide, then the admission by the applicant that he believed he was the only other person on the property would assume great significance. The defence would, however, contend that the Crown could not then exclude the possibility that another person may have been present at the scene, in particular, Colin Jensen.

2 I would add that Mr Rose of Senior Counsel, who appears with Mr Lewis to prosecute, has tendered to the Court a copy of his proposed opening to the jury. This makes clear that the Crown case is one of a combination of circumstantial evidence. It relies firstly on the accused's admission that he was the only person present in the vicinity when the deceased died. It includes alleged lies in the accused's statements to the police. It further relies on forensic evidence as to the circumstances of death and the apparent destruction of a pair of jeans in a pot belly stove, adjacent to the deceased's body, shortly after the deceased's death.

3 Further evidence as to the deceased's state of mind bears on the improbability of suicide and evidence as to the accused's long association with firearms and bad relationship with his father, tends to support the conclusion that he was the killer.

4 Mr Drake, who appears for the accused, has objected to the prosecution proposal not to call as a witness, the accused's brother, Colin Jensen, whom I shall refer to as Colin.

5 Colin is listed as a witness on the presentment. A statement by him was tendered at the committal and he was called for cross-examination at the committal. From the Crown point of view, it is apparent that he is potentially capable of giving relevant evidence, first as to the deceased's state of mind prior to his death, bearing on the possibility of suicide. Secondly as to the deceased's relationship with the accused, bearing on the accused's potential motive to kill, and thirdly as to a number of circumstances bearing on the deceased's home and habits.

6 From the defence point of view, Mr Drake submits that Colin is a material witness for two principal reasons. First, he could give detailed circumstantial evidence as to the deceased's domestic habits, state of mind and other background matters, in circumstances where the deceased lived a relatively reclusive life and these matters are not otherwise well evidenced. I interpolate that the deceased was a bee-keeper, but I shall forebear from quoting Virgil's Georgics.

7 Secondly, Colin should be called to enable the jury to evaluate the real possibility that he is reasonably suspect of being his father's killer. In particular, Mr Drake desires to cross-examine Colin as to the history of his relationship with his father, his capacity and opportunity to manufacture the alleged murder weapon and a series of false statements made by him about these matters.

8 The prosecution does not dispute that evidence as to the domestic habits, state of mind and situation of the deceased and the accused is potentially relevant.

9 The second basis of the relevance of Colin's evidence asserted by the defence also rests on common ground to this limited extent. The prosecution agrees that Colin has made a series of untruthful and evasive statements in the past. In respect of this second basis of asserted relevance, Mr Drake further submits that the evidence shows Colin had a motive for violence towards his father and previously had made threats to kill and had the special expertise required to manufacture the murder weapon. Colin cannot be directly linked to the scene of death at the relevant time but he had access to the property and knew it well. The untruthful statements Colin has previously made should be characterised as deliberately exculpatory and give rise to an inference of consciousness of guilt.

10 Mr Rose has, however, formed the opinion that Colin is not a witness of truth and that he could not be relied on to give truthful or reliable evidence as to the matters of circumstantial relevance to which he would depose. Further, it is the prosecutor's view that it is probable Colin would deliberately seek, by his evidence, to assist his accused brother.

11 The principal bases for this view include the following matters:

(1) There is covert tape evidence of extended conversations between the accused and his brother as to the circumstances of their father's death and such conversations include the formulation of answers to questions investigative police might have. The tape evidence shows both closeness between the accused and his brother and apparent collusion in the formulation of potential responses to the police.

(2) This process of response may be said to culminate in denials by Colin of any awareness of listening devices on the property. Such denials are inconsistent with photographs taken by the brothers of such equipment and with the destruction of such equipment on the property, apparently by the brothers.

(3) Colin has made untrue statements in his police statement, in records of interview and in his evidence at the committal, particularly in respect of the circumstances relating to the intervention order, but also as to other matters.

(4) Colin has had convenient memory lapses when questioned about facts pertinent to his relationship with his deceased father and other matters relating to firearms. He is also covertly taped saying to the accused that he proposed to tell police he cannot remember with respect to a particular matter. A number of statements that he cannot remember have been made on oath in circumstances which suggest strongly that they are untrue.

12 I turn then to the law. The relevant principles of law are stated in The Queen v. Apostilides.[1] In that case the High Court first summarised relevant authority and then set out the principles governing the role and responsibility of a prosecutor and the powers of a trial judge. In so doing, they quoted with approval, the following passages from Richardson v. The Queen.[2]

"Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused in making his decision as to the witnesses who will be called. He may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case; whether the evidence is credible and truthful and whether, in the interests of justice, it should be subject to cross-examination by the Crown, to mention but a few.

What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and in the light of those factors to determine the course which will ensure the proper presentation of the Crown case, conformably with the dictates of fairness to the accused. It is in this sense that it has been said that the prosecutor has a discretion as to what witnesses will be called for the prosecution but to say this is not to give the prosecutor's decision the same character as the exercise of a judicial discretion, or the exercise of a discretionary power, or to make his decision reviewable in the same manner as those discretions are reviewable. In the context the word discretion signifies no more than that the prosecutor is called upon to make a personal judgment, bearing in mind the responsibilities which we have already mentioned."

13 Secondly, the Court cited with approval the following further passage from Richardson in respect of the powers of a trial judge:

"In argument, it was submitted that the trial judge had power to direct the Crown prosecutor to call a witness, or that he had power to call a witness of his motion. For the disposition of this application, it is unnecessary to decide whether a trial judge possesses either of the suggested powers. It is sufficient to say that we remain to be persuaded of the correctness of the submission. It does not seem to accord with the adversary procedure which has hitherto been followed. If the power should be held to exist the occasions for its exercise should be rare and infrequent because all too often the trial judge lacks that knowledge and information about the witness, his relationship to the parties and to the evidence to be presented, which is essential to the making of a decision whether the witness should be called in the Crown case. The trial judge should be astute to acknowledge the nature of the discretion which is reposed in the prosecutor and the limitations attaching to his judicial knowledge of material circumstances."[3]

14 In Apostilides the Court further stated the following conclusions applicable to the conduct of criminal trials in Australia:[4]

"1) The Crown prosecutor alone bears responsibility of deciding whether a person will be called as a witness for the Crown.

The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call the particular person. He is not called upon to adjudicate the sufficiency of those reasons.

Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.

When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.

Save in the most exceptional circumstances the trial judge should not himself call a person to give evidence.

A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole it is seen to give rise to a miscarriage of justice."

"We have not attempted in our first proposition to deal exhaustively with the responsibility of the prosecutor. The description of that responsibility, which we have cited from Richardson, emphasises that the prosecutor's role in this regard is a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a heavy one. A decision whether or not to call the person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined."

15 Mr Drake has in turn invited me (a) to direct adverse comment to the prosecutor concerning the decision not to call Colin as a witness, (b) to stay the trial until the Crown indicates it is willing to call Colin as a witness, and (c) to call Colin as a witness myself.

16 As to the first course submitted, I do not propose to direct adverse comment to the prosecutor. In my view he has disclosed a reasonable basis for the course he proposes. Nothing suggests to me that he has been actuated by extraneous, irrelevant or improper considerations, he has simply made a judgment as he is bound to do upon identifiable circumstances raising serious doubt as to the appropriateness of adducing evidence from Colin as part of the Crown case.

17 In a perhaps paradoxical sense the prosecution position may be regarded as gaining credibility from the fact that Mr Drake wishes Colin to be called in significant part, so that he can seek to demonstrate to the jury what an unreliable witness Colin is. Mr Drake intends thereby to enliven suspicion against Colin. He does not wish to call Colin as a witness of truth but to attack him as a liar.

18 I am further fortified in the conclusion that I should not direct adverse comment to the prosecutor by the fact that Eames J declined to comment adversely upon the failure to call Colin when objection to this course was taken by the defence at the previous commencement of trial in this matter at Warrnambool.

19 Mr Drake next submitted that I should stay the proceeding pending an alteration in the prosecution stance. I decline to do so. Apostilides makes clear that the prosecution alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. Despite the strictures stated in Richardson concerning the nature of the relevant discretion and the terms of conclusion 2 in Apostilides, quoted above, I accept that it may be that extreme circumstances could arise where the court was positively satisfied that the prosecutor had breached his or her duty by failing to discharge it properly or at all. But there can be no suggestion that this is such a case. It is not for this court to embark on a merits review of the prosecutor's decision which, in the present case, as I have said, is premised upon identifiable and relevant circumstances.

20 Mr Drake next submits that I should call Colin Jensen as a witness myself. Putting to one side the question whether a decision so to do could properly be made prior to completion of the Crown case, which I doubt, I am not satisfied that "most exceptional circumstances" have arisen which would justify such a course. It seems to me rather that in large part, the defence wishes the Crown or the court to set up a straw man, which the defence can then knock down to both distract and detract from the Crown case.

21 There may be circumstances where fairness to the accused requires a prosecutor or the court to call a witness who is able to give evidence which the jury may regard as highly significant, despite doubts as to the truthfulness and reliability of that witness. Nevertheless in my view, Mr Rose is entitled to form his own opinion as to whether the admitted unreliability and apparent partiality of the accused's brother, has rendered him unsatisfactory as a witness for the Crown, because he will be neither credible nor truthful nor demonstrative of the underlying truth.

22 By this last consideration I mean Mr Rose is entitled to consider whether any proper inferences could be drawn from untruthful answers in the circumstances of the case as a whole. The prosecutor is further entitled to form a view as to whether, if Colin is called to give evidence, it is in the interests of justice that the Crown cross-examines him.[6]

23 Having regard to the situation as I have analysed it, it does not appear to me to be one of most exceptional circumstances.

24 In closing submission, Mr Drake sought in the final further alternative, leave to call and cross-examine Colin as part of the defence case. In my view, such an application should not be determined until the conclusion of the Crown case. Insofar as necessary however, I specifically reserve leave to Mr Drake to re-agitate the issue of evidence from Colin at the conclusion of the Crown case in any manner he sees fit.

[1] [1984] HCA 38; (1984) 154 CLR 563.

[2] [1974] HCA 19; (1974) 131 CLR 116, at 119.

[3] Ibid, at 122.

[4] The Queen v. Apostilides [1984] HCA 38; (1984) 154 CLR 563, at 575.

[5] Ibid, at 575-6.

[6] See Richardson above.

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