R v Japaljarri

Court of Appeal (Vic)|2002-10-01|Before: BATT and EAMES, JJ.A. and O'BRYAN, A.J.A.

CRIMINAL LAW - Murder - Arson - Burglary - Conduct of counsel - Whether counsel and judge wrongly prevented applicant giving evidence - Whether prosecutor obliged to call further witnesses and to ask further questions of witnesses - Whether insufficient cross-examination of witnesses by defence counsel - Whether defences of duress and necessity open - Causation - Possibility that further blows struck to victim after departure of applicant from scene - Whether convictions unsafe and unsatisfactory - Whether convictions against the weight of evidence.

The applicant, Japaljarri (formerly known as Brent Andrew Hocking), was found guilty by verdict of a jury on 4 September 2000 on counts of burglary, arson and murder. It is necessary to set out the circumstances of this somewhat bizarre case in some detail.

All three offences were alleged to have occurred on separate days between 16 July 1993 and 26 October 1993 at premises in Dunloe Street, Box Hill. In all cases the same victim was involved, namely, Phyllis Fielding Hocking, who was the applicant's grandmother. Mrs Hocking died on 26 October 1993 at the age of 79 years. She had married and had one adopted son, Phillip Hocking[1] who had been adopted as a small child. After her husband died in 1987 Mrs Hocking moved into a bungalow at the back of her son's house in Dunloe Street, Box Hill. She later moved into a unit which was directly across the road from her son's house. Mrs Hocking was in poor health, having suffered several hip operations, a stroke, having failing eyesight and walking with the aid of a walking stick.

Mrs Hocking's relationship with her son Phillip was turbulent. She had financed several business ventures which he had undertaken and had provided other financial support to him, but from time to time she changed the terms of her will to reflect her current attitude towards her son, whether by removing him as a beneficiary or restoring him. Her son held a power of attorney over her affairs. At the time of each of these offences the power of attorney was current and the son,

Phillip Hocking, was the beneficiary under the will.

The applicant was the eldest son of Phillip Hocking by his first marriage.

The first of the offences was a burglary on 16 July 1993. On that day, so the Crown alleged, the applicant entered his grandmother's unit at Box Hill and made a mess within the premises for the purpose of frightening her, by suggesting that an intruder had entered her home. He also stole some items from the unit. In his record of interview with police in 1999 the applicant said that he had committed this offence at the request of his father, who wanted to scare his mother into moving into an old persons' home, whereupon Phillip Hocking would take control over her money under the power of attorney. From those funds he promised that he would provide some money to the applicant. Having entered the premises the applicant poured wine and spirits around the unit and took some jewellery and a stamp collection, plus some money. The identity of the offender remained unknown for six years.

Mrs Hocking was not intimidated by the robbery and decided to remain in her unit.

The next offence occurred on 8 August 1993. The applicant was then living with his de facto wife, Kathleen Andrews and their two children, together with a friend, Scott Willis. Another friend, Phillip Royal, lived downstairs. The applicant was in partnership with Willis and Royal in a steam-cleaning business, that business experiencing financial difficulty.

In the early hours of the morning of 8 August 1993 the applicant was driven to his grandmother's unit by Phillip Royal. He was carrying a Molotov cocktail and a spray can of paint. He told Royal that his intention was to set fire to the unit, burning his grandmother to death. He said he proposed to then spray graffiti onto the garage door to make it appear as though the arson had been caused by offenders who erroneously believed the unit was occupied by a homosexual couple. In fact, a homosexual couple lived in the adjoining house. In his 1999 record of interview, the applicant, once again, told police that it was his father's idea that he burn down the property and kill Mrs Hocking, so that he would inherit his mother's money under the will. The applicant told police that his father had promised that he would buy him a steam-cleaner for the business if he performed this task.

The applicant lit the Molotov cocktail and threw it through the window of the unit, causing a fire to erupt. He was then picked up by Royal and driven home.

Mrs Hocking was not killed, having been woken by the smoke detector. She escaped the premises. Investigators at the scene did not discover that the fire had been deliberately caused. It was concluded that an electrical fault in the television had caused the fire. As a result of the damage to her unit, however, Mrs Hocking was forced to move into her son's home and she resided in the lounge room whilst the unit was being rebuilt.

The final offence occurred on 26 October 1993. On the morning of the murder Mrs Hocking, as was her practice, was picked up from her temporary residence at her son's home, in the early morning, by a Council driver who took her to the community day centre. She returned at her usual time, just after 2.p.m. The applicant, Willis and Royal, were all at home, and they together drove in Royal's car to a video store in Kew Junction and hired videos. The applicant then asked them to drop him off at his father's photography studio in Box Hill. The applicant told police that from there his father then drove him to the father's home in Dunloe Street, Box Hill. He there waited for his grandmother to return from the community centre. A screwdriver had been used for the purposes of giving the appearance that someone had broken into the house via the kitchen window. The applicant waited in his father's bedroom until he heard Mrs Hocking enter the house. He was holding a heavy metal tyre lever. He walked behind her and struck her on the side of the neck with the tyre lever and as she started to fall he struck her several more times in the area of the head. He told police that when she was on the floor she was still moving slightly, so he struck her once again. He then cleaned the tyre lever with a tea-towel and removed it and the screwdriver from the premises when he left. After exiting the house he was picked up by his friends Willis and Royal, some streets away, as had been arranged. When he entered the car he said, "I did it, I did it". He later disposed of his clothes and the three men agreed not to speak about the events again.

Phillip Hocking arrived home at approximately 3.45 p.m. with his children. He told police that he found his mother dead, and had called for assistance. A watch was found on the body of the deceased which had its face shattered and it had stopped at 2.05. Later enquiries showed that this watch had been rusted for some time and was not working.

Phillip Hocking made a statement to police in which he accounted for his own movements, and his secretary confirmed that he had had appointments at 2 p.m. and 3 p.m. at his studio and had been present for those appointments. No charges were laid against anyone at that time.

Some months later Phillip Hocking inherited his mother's estate and gave his son $20,000 to buy a steam-cleaner.

On the appeal before us the applicant, who appeared unrepresented, directed arguments solely to the count of murder. The grounds of appeal were as follows:

"1. The convictions of Murder, Arson, Endangering Life and Burglary were against the weight of the evidence. 2. The Applicant was denied the right to be heard in his own defence. 3. The Prosecutor failed in his duty to impartially raise before the Court all of the relevant evidence. 4. The Prosecutor failed in his duty in not calling all relevant witnesses. 5. The Prosecutor failed in his duty in that he made little effort to locate relevant witnesses. 6. Incompetence of Counsel. 7. In all of the circumstances the conviction is unsafe and unsatisfactory."

In very broad terms, the applicant's contention as to the murder count was that there was a reasonable possibility that at the time when he left the premises his grandmother was still alive and that his father - having attended the premises after the applicant left, in order to check that the applicant had successfully killed Mrs Hocking - discovered that she was still alive and himself administered the blow or blows which caused her death. Had this scenario been one which was put to the jury then, he submitted, the jury may have had a reasonable doubt and, as a result, have acquitted him of murder and convicted him of attempted murder, instead.

Despite the fact that the applicant, in his record of interview with police, had implicated his father in the way discussed, above, the Crown ran the case on the basis that it was he and he alone who struck any blows, and did not run the case on the alternative basis that even if it was true that the father delivered the fatal blow then the two of them had been acting in concert and both were equally guilty of murder irrespective of whose blow caused the death. Having run the case on the basis that they did the Crown was obliged to satisfy the jury beyond reasonable doubt that the death was caused by the applicant, and by him alone.

As unlikely as the hypothesis was which the applicant said he wanted to place before the jury (but which opportunity he said he was denied) there was some limited support for it to be found in the evidence.

A police crime scene examiner discovered that in the house where the body was found the main bedroom and another bedroom had been ransacked and a video recorder and other hi-fi equipment were found stacked near the back door. Someone had created an impression that the person who committed the murder had been engaged in a burglary but had been disturbed before the equipment could be removed from the premises. In his record of interview the applicant made no reference to ransacking the premises or moving items near the back door. Indeed, when questioned by police about this he expressed complete ignorance and surprise at the suggestion.

The investigators also found that the watch, which was broken, had left no fragments of glass anywhere near the body. In other words, it was a reasonable presumption that the watch had been broken elsewhere, before being placed on the arm of the deceased. Evidence disclosed that the watch would have been inoperative for some months.

A forensic pathologist gave evidence that there had been multiple forceful blows to the head, at least three blows producing fractures to the skull and brain injury and there were up to as many as a dozen blows altogether. There were injuries consistent with blows to the left side of the back of the head, left side of the top of the head, the middle of the back of the head, numerous bruises to the trunk of the body (consistent with being hit by at least two blows with a metal bar), injuries and fractures consistent with at least five blows to the right wrist and the hand, and to the left wrist and hand of the deceased, including "cross-hatching marks" caused by the watch band which were consistent with the deceased's body being struck by a metal bar at the point of the watch band. In his statement to the police the applicant said that Mrs Hocking had raised her arms after he struck her to the neck on the first occasion but he denied placing a watch on her.

The pathologist, Dr Robertson, said that the head injuries were the cause of death and any one of those injuries, of itself, could have produced death. Dr Robertson said that death had occurred within a couple of hours of the injuries but could be no more precise. The cross-hatching marks on the wrist were likely to have been caused during life, Dr Robertson said, and were consistent with there being three separate blows to the area of the watch band. Dr Robertson said that she could not discount the possibility that there had been two separate assaults, separated by some minutes. She could not say in what order the blows were inflicted and all could have occurred within an hour or so prior to death. Some of the injuries had an appearance of being caused by the same weapon.

Dr Maxwell Jones, a forensic scientist, gave evidence relating to the blood spatters and concluded that they were consistent with a number of blows being inflicted upon the deceased as she lay on the floor and with others having been inflicted while she was standing, and was being struck repeatedly to the head.

The applicant told police he struck only one blow while the deceased was lying on the floor.

Scott Willis gave evidence that the applicant told him that he had killed his grandmother and that he had plotted to do so with his father in order to get Mrs Hocking's money. He also admitted to fire-bombing the house.

Phillip Royal gave evidence of being present when the house was fire-bombed and of the applicant telling him on that occasion that he hoped that the fire would "finish her off". He agreed that he drove Willis and the applicant on the day of Mrs Hocking's death and when the applicant got back into the car Royal asked him if he had killed his grandmother and the applicant had nodded and said that he hit her over the head with a piece of metal in order to get the money in her will.

About five years after the death the applicant told a business associate that he had killed his grandmother five years earlier and had been offered $20,000 by his father to do so. He told the witness, Mr Vincendesi, that he had struck his grandmother three times with a metal object. In 1996 he told his then wife that he had killed his grandmother by striking her on the back of the head with a metal bar. Their marriage broke down and in September 1998 the wife reported to the police what the applicant had told her.

The applicant's sister, Rachael Ovalsen, said that in 1999 the applicant admitted to committing a burglary on his grandmother's house in order to force her to go into a nursing home and said that his father had wanted to scare his grandmother in that way. He said that his father had been very upset that the break-in had not scared Mrs Hocking and that had led to the plan to petrol bomb the unit. His father was extremely angry, once more, when Mrs Hocking survived the arson attack. The applicant told Ms Ovalsen that he had later hit Mrs Hocking over the head with a steel bar and she had died. Ms Ovalsen persuaded him to go to the police, which he did, and he made a full confession on 21 February 1999.

The applicant's father gave evidence at the committal but fled to New Zealand prior to the trial and was not called by the prosecution. The police informant said that he could not locate the applicant's father.

The depositions of Phillip Hocking from the committal were tendered in the trial. In his evidence he had denied involvement in the death and said that he had gone to his house at approximately 1.30 p.m. to pick up a video recorder and had returned about 15 minutes later to the studio for an appointment at 2 p.m. and he remained there at work until 2.50 p.m. when he did a photo session with a model. He left the studio at 3.20 p.m., collecting his younger children from school and driving them home, where he discovered his mother's dead body. During cross-examination it was put to him that he had arranged with his son to kill his mother. He responded by declining to answer questions on the grounds that to do so might incriminate him.

The secretary to Phillip Hocking, one Nicola Tansley, had a statement read into evidence and in that statement she said that she had checked the diary of Phillip Hocking which disclosed he had an appointment at 2 p.m.. She said that she herself started the interview and continued for about 20 minutes and then Phillip Hocking helped her out. There was another client interview at 3 p.m. She did not know whether he went out between the two interviews.

Detective Sen. Sgt. Bezzina said he understood that Hocking was in New Zealand but he did not have an address and he had been unable to contact him to bring him to court as a witness.

The applicant was committed for trial after a contested committal hearing which occupied some three days. He was represented by counsel at that time and the same counsel continued to represent him during pre-trial hearings in the Supreme Court. On 17 January 2000, however, during pre-trial hearings before Vincent, J., the applicant announced that he had terminated the services of his counsel and solicitor. His Honour adjourned the hearing to enable the applicant to obtain further legal representation. On 28 August 2000 he appeared for arraignment before Vincent, J. and was then represented by senior counsel for the trial. The prosecutor called some 19 witnesses and, by consent, read statements and depositions of other witnesses and tendered various exhibits. The Crown case closed on 31 August 2000, and in the absence of the jury the trial judge asked counsel for the applicant what course was proposed to be taken. Counsel announced that the applicant would give evidence and his Honour queried what the defences were which counsel thought could possibly go to the jury. In the course of the discussion counsel said that most defences were not open but that what the defence would be was "that the Crown have not been able to prove beyond reasonable doubt that Phillip Hocking did not return subsequent to my client leaving and further assault and possibly kill the deceased". Counsel said that it would be contended that any actions of Phillip Hocking in such circumstances were not part of any agreement between Phillip Hocking and the applicant.

His Honour expressed puzzlement as to what possible benefit there could be to the applicant's defence in him giving evidence. His Honour said that as he perceived the situation it appeared likely that the applicant would enter the witness box and confess to murder. His Honour said it was not his function to intrude into the conduct of the defence but he expressed his concern about the proposed course, and counsel said he proposed to have further discussions with his client. His Honour commented that advancing the proposed defence to the jury would not appear to be dependent on any evidence which the applicant was likely to be able to give. Counsel agreed. His Honour said:

"If there's some piece of evidence that he may be able to contribute to provide some support for that possibility, then it might be a different matter, but I'm troubled about it otherwise."

"I am extremely uncomfortable with the idea that he will get into the witness box and effectively confess to murder and I am troubled by the notion of withdrawing even the most tissue paper thin defence from consideration by a jury when an individual is facing a conviction for murder."

Counsel asked for an opportunity to speak to his client and indicated that the concerns which his Honour had expressed had already been conveyed by counsel. His Honour responded:

"I do not want to deny to any person directly or indirectly, (by) any form of persuasion, an opportunity to give evidence in his own defence but, on the other hand, I am actually talking about giving evidence in his own defence."

After a short adjournment counsel announced that he had had a discussion with his client "and my client understands the position and he has instructed me he does not wish to give evidence".

There followed some discussion in which the prosecutor posited that even if the jury was to have a reasonable doubt as to whether the death had occurred in the way suggested by defence counsel the applicant would nonetheless be guilty of murder by virtue of having acted in concert with his father, because it was not necessary for him to have been present at the time of death if the agreement was that Mrs Hocking would be killed.[2] In response to that his Honour said that it might be open to argue that the agreement was only that the applicant should kill Mrs Hocking and that if he had not done so, and it was subsequently his father who killed the victim, then that would be outside the agreement and the applicant would be guilty of attempted murder only.

The applicant had intended to give evidence in his defence. That is made clear in the written instructions to his legal advisers, which he provided to the court during the appeal. That proposed course was announced by his counsel in the defence opening address at the commencement of the trial. The applicant complains that had he given evidence he could have added support to the theory of death being occasioned by his father. In particular, he would have given evidence on the following matters:

(i) that it was not he who put the stereo and video equipment near the back door;

(ii) it was not he who caused disturbance in the rooms;

(iii) he did not place the watch on the wrist of Mrs Hocking;

(iv) he did not strike all of the blows which the pathologist's evidence disclosed;

(v) he had only struck three blows;

(vi) he did not know for certain that she had been killed by him when he left the premises;

(vii) items which were found at the scene by police, being an address book, mail and papers, which were on the floor near the deceased and were covered in blood, had not been there when he left the scene;

(viii) he had been subjected to physical and mental pressure from his father, which amounted to "defences" of duress and necessity;

(ix) he could have given a full outline of the circumstances that caused him to be involved in the killing, and could have implicated his father.

When interviewed by police the applicant denied that he had placed the stereo or video equipment near the door, disturbed the premises or placed the watch on the deceased. The account he gave to the police as to the number of blows which he struck was arguably inconsistent with the number of blows identified by the pathologist. In his police interview the applicant gave full details of his father's involvement in the planning of the killing and, had there been a defence of duress or necessity open to him (which there was not), he provided some material in his statement to police which was consistent with those defences.

The jury, therefore, had before them material which was capable of supporting the hypothesis that the death of Mrs Hocking might have followed blows from Phillip Hocking. That might have led to the conclusion that blows struck by the applicant did not cause or contribute to her death. If the jury had a reasonable doubt as to that then the applicant would have been convicted of attempted murder, not murder. These matters counsel put to the jury. Thus, all of the matters that the applicant wanted to have put before the jury were put by counsel, but they were not supported by his evidence on oath.

The applicant now complains that until the comments by the judge he had intended to give evidence, and that by virtue of the actions and comments of both the judge and his counsel, who, he said, "were in positions of power and influence over me", and because he did not have reasonable time to think about the decision, he gave way to "that pressure". In his written submissions to the Court the applicant said that he had only some two minutes to discuss the matter with counsel prior to coming to a decision, and that when he did so he felt under immense pressure, and regretted the decision the following day.

The Court gave notice to counsel who appeared at the trial and invited him to respond if he wished to do so.[3] Counsel advised the Court that he did not wish to say anything in response to the grounds of appeal, save to refer the Court to a note which had been written and handed to him by the applicant after the decision had been taken that the applicant would not give evidence and before his counsel commenced his final address.

In the note, which the applicant admitted he wrote, he expressed his "gratitude and appreciation for your dedication with my case". He added "I appreciate the complexities and hurdles that we are confronted by". After discussing some general matters about humility and his philosophy of life he concluded by writing "whatever the outcome I know it will not be for your lack of skill or trying".

Although the written outlines suggested otherwise, in his oral submissions to this Court, the applicant did not press the contention that he had been forced by the judge to abandon his decision to give evidence. Instead, he complained that his counsel had not adequately informed the judge of the reasons why he had proposed to give evidence. In my view, the comments made by the judge as to the proposed course were intended to be helpful, not harmful, to the applicant's interest. Nothing said by his Honour could be interpreted as applying pressure to the applicant as to the course he would adopt.

So far as the complaint as to the role of counsel, in my view there is no basis on which it could be said that the decision which was taken reflected incompetence on the part of counsel.

It may well have been that by giving evidence the applicant would have provided some material by way of evidence on oath which could further his contention that the fatal blow was struck by his father. That proposition, however, could already be advanced by virtue of the material which was before the jury and any advantage gained by virtue of his oral evidence would have had to be balanced against the impact upon the jury of his being cross-examined about his previous attempts to intimidate and kill his grandmother and as to the precise circumstances in which he struck the blows, which he admits that he did, upon a defenceless woman. It is not difficult to imagine the impact upon a jury of such cross-examination and I have no doubt that the applicant, an intelligent person, well appreciated that the course of giving evidence was a risky one from his point of view.

The applicant was in no position to give evidence that his father in fact struck any blows, and any attempt to offer speculation would have been inadmissible as evidence. Furthermore, the "defences" of duress and necessity which the applicant now says his evidence would have supported were not open to the applicant.

It is unlikely that the defence of necessity is available for the crime of murder:

see R. v. Dudley and Stephens[4] and R. v. Howe[5]. In Howe, it was held that the denial of the defence to a murder charge applied both to a principal in the first degree and also an aider and abetter. The possibility that the defence might be open on a murder count was considered, obiter, but not excluded, in R. v. Loughnan[6] and the learned author of the Ninth Edition of Smith and Hogan's "Criminal Law" concludes that it would be premature to conclude that necessity can never be a defence to murder[7]. However, even if the defence was open to a person charged with murder, it would not have been open on the facts in this case, because the defence of necessity required that the accused must have been in a situation of imminent peril, and to have done the acts only to avoid irreparable evil befalling himself, and the act must not have been out of proportion to the peril he sought to avoid[8]. If the applicant had believed, on reasonable grounds, that he acted so as to avoid the threat of death or serious injury to himself the defence might have been open[9]. None of those factors applied in this case.

The applicant now complains that he was denied the opportunity to present evidence in support of defences of necessity and duress. Although that contention is now advanced the primary complaint on appeal related to the failure of the jury to have entertained a reasonable doubt about whether his father delivered the fatal blow. Had there been a reasonable doubt on that question then the applicant would have only been guilty of attempted murder, and that was the verdict that the jury were urged to return.

The defence of duress is not available on a charge of murder[10], at least not for a person proved to have done the actual killing. It might be open where the accused is a principal in the second degree[11]. In an appropriate case the defence might be available on counts of arson and burglary but, as I later discuss[12], it would not have been open to the applicant in this case because there was not sufficient material to raise the defence on the counts of arson or burglary. Indeed, counsel for the applicant (quite rightly, in my view, since there was no basis for either defence to be left to the jury) did not seek to have either the defences of duress or necessity left to the jury, on any one of the three counts. The applicant now claims that had more material been introduced in the trial - by the prosecutor or defence counsel, or by the applicant giving evidence - the defences would have been open to him, but in my opinion, there is no prospect that that would have been so.

The Crown case, here, was that the applicant was a principal in the first degree, thus the defence of duress was not available on the murder count, even if there was material which otherwise suggested that he might have been acting under duress. Once duress was excluded from consideration, then the critical issue on the murder count was whether the death of the victim might have been caused by the applicant's father, rather than by the applicant. It was accepted on both sides that if there was a reasonable doubt as to that question then the applicant was not guilty of murder, but was guilty of attempted murder.

The approach of seeking a verdict of attempted murder would have been quite inconsistent with a defence of duress on the murder count, even if such a defence had been open. That is so because the defence of duress provided a complete defence on any count to which it applied. Thus, had it been available on the murder count it would have provided a complete acquittal to all alternative counts also.

An interesting, but entirely theoretical, question arises concerning the availability of the defence of duress to a charge of attempted murder, which was the verdict sought by the applicant at trial. The question whether duress is a defence to attempted murder has not been resolved in Australia, although the House of Lords has held, by majority, that the defence is not available[13]. As a practical proposition, even if the defence of duress was available on a count of attempted murder (assuming, further, that there was any basis for leaving the defence to the jury) this was not a trial on a count of attempted murder. The verdict of attempted murder was one sought by the applicant and had he succeeded in obtaining that verdict it would have been inconsistent with that approach to then contend that the attempted murder verdict, an alternative verdict on the count of murder, was open to challenge on the basis that the accused had acted under duress, which defence had been denied to the count of murder.

In any event, this analysis about the potential effect of a defence of duress on the murder count - had an alternative verdict of attempted murder been obtained - is quite academic, in this case, because the defence was only ever available (on any count) where the person supposedly acting under duress was doing so under the threat of death or grievous bodily harm if he failed to perform the relevant acts[14]. There was no suggestion in any of the material that that was the motivation for the involvement of the applicant in the killing (nor, as I later discuss, for the burglary or arson offences). Furthermore, to refer to just some of the necessary elements of the defence, as identified by Smith, J. in R. v. Hurley and Murray[15], the circumstances had to be such that a person of ordinary firmness would have been likely to yield to the threat in the way the accused did; the threat must have been continuing, imminent and impending; the accused must have reasonably apprehended that the threat would be carried out; he must have had no means, with safety to himself, of preventing the execution of the threat. None of those factors applied in this case. Although the defence of duress would have been theoretically available to the two other charges the evidentiary deficiencies were equally apparent with respect to those counts also, as I later discuss.

The applicant may well now regret that he did not give evidence. That decision is one of the most difficult for any accused person to take in a trial and whatever decision is taken it is often regretted by a person who is convicted. When a tactical decision is taken in a trial an appeal court will be very slow to conclude that the decision constituted an error on the part of counsel which was so serious as to justify the verdict being set aside. It will do so only if by virtue of the decision a miscarriage of justice has been caused[16]. Generally, the accused person is bound by the tactical decisions of counsel at trial.

The decision not to give evidence was one taken by the applicant, not by counsel, but in considering this ground I will assume, without deciding, that the decision of the applicant was taken by virtue of the strong advice of counsel and would not otherwise have been taken. Tactical decisions in a trial involve questions of judgment, and neither disobedience to instructions nor incompetence would be sufficient to justify interference by the court, unless a miscarriage of justice was demonstrated[17].

Where egregious error or flagrant incompetence of counsel has been demonstrated[18], so serious as to give rise to a miscarriage of justice, then the appellate court would intervene. In the present case I am not even persuaded that the decision not to give evidence was a tactical error, let alone an error disclosing incompetence on the part of counsel. The decision was one which allowed the appellant's counsel to advance all of the arguments for the hypothesis of intervention by the father, without the adverse impact (as I have no doubt would have been the effect) of the applicant being cross-examined. Had the applicant been acquitted of murder he would no doubt have regarded the decision not to give evidence as being very wise.

In my opinion, ground 2 is not made out. Insofar as one part of the complaint about the incompetence of counsel in ground 6 relates to the decision of the applicant not to give evidence, that ground is not made out, as to that complaint.

These grounds of appeal may be taken together. The applicant contends that there were various failures on the part of the prosecutor in not leading all relevant evidence, not calling all relevant witnesses and making insufficient effort to locate relevant witnesses. In his written outline of argument the applicant identified 16 persons whom he suggested should have been called by the Crown, but were not. Of those 16 witnesses named by him all but five were listed on the presentment. Had the defence wanted them called then the Crown would have called them. In discussions at a "Pegasus" pre-trial hearing it was agreed between counsel as to the witnesses named on the presentment who were required to be called at the trial. Statements were available to the defence from all witness who were named on the presentment.

As to the five persons identified by the applicant who were not named on the presentment, none of them, in my opinion, had relevant evidence to give in the trial. I deal first with those five persons.

Peter Leslie Butts was a police officer who was not a witness to any of the events but was involved in the investigation in 1995 and in the procuring of a search warrant in 1995 when the case was being re-examined by police investigators. That re-examination did not lead to any charges then being laid. The applicant contended that Butts could have given evidence of being told by witnesses that the deceased was known to be wearing a gold watch three weeks prior to her death and that the deceased had a second watch taken for repairs by her son, Phillip Hocking in July 1993. He contended that such hearsay evidence, given through Butts, would have established that his father was connected to the watch which was found on the dead woman's body. In his notes made in the course of the re-examination of the file Butts recorded the belief on the part of police that the watch had been placed on the deceased and set at 2.05 p.m. That would suggest that the person placing the watch in that way was a person who needed an alibi at the time of the death. The applicant wanted Butts to give evidence of the analysis conducted by police, at that time, which led them to believe that Phillip Hocking had committed the murder.

All of this "evidence" from Butts would have amounted to nothing more than hearsay or opinion evidence which was not admissible. In any event, almost all of the material which the police thought pointed to the involvement of Phillip Hocking was available to the jury in this case, and was addressed by counsel for the applicant in his final address. The absence of Butts as a witness in the trial, in those circumstances, could not have had any effect on the outcome.

Graham Alexander Kenefacke was a detective inspector who, the applicant contended, could have given evidence relating to the file he prepared for the coroner's inquest. In particular, Kenefacke, according to the applicant, could have given evidence of the result of fingerprint examination at the scene, which disclosed that no foreign fingerprints were found. The applicant contends that that would show that because his own fingerprints were not found on any of the items at the scene it was not he who placed those items there. I did not really understand this argument since in his written submission the applicant said that he was wearing gloves at the time. The balance of Kenefacke's evidence would have been of a hearsay nature constituting a summary of the facts and material which led the police to their belief of the involvement of Phillip Hocking in the murder. Once again, this witness had no relevant or admissible evidence to give at the trial. Any factual material to which his document referred was material which was available to the defence, in any event, for the purposes of address.

Vasliki Sophie Milonas, Kat Georges and Deborah Ryan were said by the applicant to be relevant witnesses who should have been called because they could have described his father as, variously, "very manipulative and a great con artist", "he can use psychology on anyone", he was "sleezy, a liar, manipulative". All of this evidence was said to be relevant as damning the character of Phillip Hocking and as being supportive of the contention that the applicant acted under duress or through necessity, by virtue of the conduct of his father. None of that evidence was relevant to the elements of the defences, and it could not have provided support for the contention that there was sufficient relevant material to justify the defences being left to the jury.

As to the other witnesses whom the applicant says should have been called and who were named on the presentment the applicant has simply pored through their statements, and depositions, finding a detail here, or a detail there, which he now contends could have been highlighted in evidence to support the various theories concerning his father's involvement, and the "defences" of necessity and duress. Whether or not any of those witnesses might have added anything to those issues (assuming the issues were open to be considered by the jury) no criticism can be levelled at the prosecution for not calling the witnesses, because it was a decision taken by the legal advisers of the applicant, being fully informed of the contents of the statements of the witnesses. Furthermore, the minutiae highlighted from those statements by the applicant, even if admissible, were of so little moment as to render understandable the pre-trial decision of defence counsel not to require that the witnesses be called.

The final witness about whose absence complaint is made is the applicant's father. Even assuming that there was any obligation on the prosecutor (rather than, if on anyone, upon the informant), the precise whereabouts in New Zealand of Phillip Hocking were unknown to the police at the time of the trial. The applicant contends that a search for him under the name Ovalsen would have located his father, who was no longer using the name Hocking. However, even if there was any duty on the prosecution to produce Hocking at the trial (which I do not need to decide) and even if there was a breach on the part of the prosecutor in meeting that duty (for which contention there is no evidence at all) then had Phillip Hocking been produced and brought to trial it could be reasonably anticipated that he would have taken precisely the same course as he took at the committal, in declining to answer questions on the ground that they might incriminate him. The applicant's written submission sets out the matters on which his father could have been cross-examined had he been a witness in the case. This ignores the fact that he would not have answered questions, on the ground of self-incrimination. The jury already knew that he had declined to answer questions on that basis at the committal, because his evidence at the committal was read to them.

In addition to complaining that the prosecutor failed to call witnesses, the applicant complained that some of the witnesses he did call were not sufficiently questioned by the prosecutor. It is unnecessary to traverse the detail of the complaints made as to each such witness. It is sufficient to say that there was no failure of any duty of the part of the prosecutor in failing to ask the questions which hindsight now suggests to the applicant should have been asked by someone. The matters referred to in argument and in the written submissions of the applicant are not of any moment, in my opinion, and constitute merely further details (often inadmissible) which relate to, but do not advance, the contention that another person may have entered the premises after the applicant had departed.

The duties of a prosecutor are well established[19] and impose an overriding obligation to act fairly, so that nothing is deliberately done or omitted by the prosecutor that prejudices the fair trial of the accused. Subject to that obligation, the decision as to the calling of witnesses is in the sole discretion of the prosecutor[20], and in my view, the decision as to the questions which should be asked of the witnesses must equally be in the discretion of the prosecutor.

The complaints in grounds 3, 4 and 5 that the prosecutor in this case failed to meet his duties in the conduct of the case are without substance.

I have already dealt with one aspect of the complaint against counsel who appeared for the applicant, namely the decision that the applicant would not give evidence. The questions which the applicant identified as being ones which witnesses should have been asked by the prosecutor, and the complaint about absent witnesses, were specified as also being relevant to the ground complaining about the competence of defence counsel.

Counsel who appeared for the applicant was senior counsel, with considerable experience in criminal trials. It might well be thought that the applicant, having sacked his earlier counsel, was fortunate to have had such experienced counsel assigned to him by legal aid authorities. The fact that legal aid was involved does not, of course, mean that the required standard of competence of counsel is reduced; indeed it is not. As earlier noted, however, the complaint of incompetence of counsel must result in a miscarriage of justice if the ground is to be upheld. The primary complaint is that counsel failed to ask certain questions or wrongly agreed in pre-trial hearings not to require the attendance of certain witnesses. As I have earlier shown, in combing through the depositions the applicant has now identified topics and aspects of evidence which he considers were worthy of further questioning of witnesses, or the calling of additional witnesses. In my opinion, most of these topics were either irrelevant to defences which were available to run, were inadmissible, or were mere repetition of matters which were already in evidence.

The tactical decisions as to what questions to ask witnesses, and which witnesses to call, will rarely be capable of giving rise to a miscarriage of justice. Counsel must make judgments, because the unnecessary questioning of witnesses, and prolonging of the trial by unnecessarily calling witnesses, is likely to impact adversely to the interests of the accused with the jury. Furthermore, while counsel owes a duty to the client he or she is not the mouth-piece of the client. Counsel has an obligation to the courts and to legal aid authorities not to unnecessarily prolong a trial.[21]

In my opinion, there is no evidence, at all, that counsel made decisions as to the calling of witnesses or the questioning of witnesses which were unwise or inappropriate, let alone that he made such decisions incompetently.

The complaint in ground 1 that all three convictions were against the weight of evidence was limited, in argument, to complaint as to the murder conviction only. As to ground 7 - the "unsafe and unsatisfactory" ground - the focus of the applicant's submissions was again on the murder count and, save for asserting that he had defences of duress and necessity, the applicant did not contend that there was an absence of evidence on which his conviction could be justified on the two other charges.

I earlier addressed the question whether duress was available on a count of murder. There is no doubt that in an appropriate case that defence might be open in a charge of arson or burglary, but in this case there was no material which would have allowed the defence to go to the jury. As I earlier discussed, there was no evidence to meet the required elements for the defence of duress, as discussed by Smith, J. in R. v. Hurley and Murray[22]. The evidence was all one way, that the applicant committed the offences of burglary and arson when his father was not present, and did so in the expectation of financial reward. There was no evidence that his life or well being were threatened by his father. He could have simply reported to police his father's offer to reward him if he murdered his grandmother. Similar considerations apply to the defence of necessity, so far as it might otherwise be available.

The applicant was not in personal peril if he did not commit the offences against his grandmother. There was no foundation for either defence. Despite the claims he now makes that, but for the wrong tactical decisions being taken by counsel, relevant evidence in support of the defences could have been produced at the trial, nothing he pointed to in argument demonstrated that to be so. That is confirmed when one considers what the applicant said in his lengthy police interview, which he maintains was a truthful account on his part.

In his record of interview the applicant said that his father "coerced" him, but denied that he had threatened any harm, at all. He said that all of his life he had done what his father asked. He said he had an "awesome bond" with his father and acted out of a "fear of losing him". He said he committed the arson and burglary because he wanted to stay with his father and "he always justified doing illegal things and I was sort of brain washed in to it at that stage of my life. I used to think that the only way you could make money, back when I was young, was illegally, really, because it was too hard legally."

That material in the record of interview falls far short of raising a defence of either duress or necessity, and nothing the applicant said in his written or oral submission as to what he would have told the jury if he had given evidence would have been capable of raising a reasonable doubt as to either defence. The applicant also contended that had he given evidence he would have led evidence from psychologists or psychiatrists which supported his contentions as to duress and necessity. The fact is, no such evidence was called, and, thus, there was no support for these defences. Even if there had been any such expert evidence available to be called[23], I am not persuaded that the fact that it was not led would constitute an error by counsel or might have caused a miscarriage of justice on any of the counts.

I turn to the question whether the conviction for murder was unsafe, or, more precisely, "is unreasonable or cannot be supported having regard to the evidence"[24]. The issue with which we are concerned is not whether there was a rational hypothesis consistent with innocence, which was open on the evidence, but, rather, whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant[25].

Curiously, the prosecutor, knowing that the defence were going to argue that the father had entered the scene and delivered the fatal blows, did not choose to run the case on alternative bases, namely, that either the applicant struck the fatal blows or else if his father did so then he did so when he and the applicant were acting in concert.[26] Instead, the Crown case was put on the sole basis that only the applicant struck the fatal blows. That made the Crown case more difficult to establish if the jury had a reasonable doubt whether the father had indeed been on the scene after the departure of the applicant.

The applicant submitted on appeal that he had struck his grandmother only three times, twice to the right hand side of her neck and once to her back when she had fallen. He told us that he struck his grandmother to the neck because his father had told him (erroneously, so the applicant now believes), that it was a blow to the neck which would kill, rather than a blow to the head[27]. He said he would have given that evidence had he been called in his own defence.

The pathologist stated that there had been a minimum of three blows to the head, any one of which could have caused death in due course. In his record of interview the applicant said that he struck his victim to the neck, very quickly, "a few times". He said " I would've hit her and she started to fall and then I hit her several more times". When asked where he hit her those several more times he said "I think somewhere in the head". He said that "By the time the last blow was hitting, she would've hit the floor". He was then questioned as follows:

"614. Okay. Now, she's on the floor. Is she moving? - I think just slightly. 615. Okay. And while she's on the floor, did you strike her again? - I'd say once. 616. Okay. - Yeah 617. And is that because she was still moving or what was the reason for striking her again? - I guess because she was still moving, yeah."

The claim that the verdict was unsafe turns on the possibility that the father had entered the house after the applicant had left the scene of what he believed to be the dead body of his grandmother, and the father, having observed that his son - despite his best efforts - had failed to kill the victim, then struck the fatal blow or blows, and also struck blows to the wrist and watchband so as to suggest that the death had occurred at 2.05 p.m., when he had an alibi. The contention is that as there were a minimum of three fatal blows to the head that leaves open the possibility that there was a fatal blow to the head which the applicant had not delivered[28].

The possibility that the father had entered the premises, made it appear that a burglar had been disturbed, gave himself an alibi by placing a watch on the wrist of his mother and then struck blows to the wrist area, could not be discounted. Indeed the evidence to support the intervention of the father to do some or all of those things was mildly persuasive (assuming the applicant's account in his record of interview was believed). However, there was no evidence that the fatal blow to the head had been struck by anyone other than the person who struck the other blows to the head. It was pure conjecture that the father might have struck such a blow. As against that possibility there was the unchallenged evidence that the applicant - a fit young man - when fully intending to kill his elderly, frail, grandmother, did strike her with multiple savage blows to the head, the last one being while she was on the ground, that being struck to ensure that she was dead. Even if the victim did not die immediately (and the evidence of the pathologist could not exclude a two hour delay before death occurred), the jury nonetheless had very strong evidence on which to conclude that a blow or blows of the applicant caused or contributed to the death of the deceased. Dr Robertson gave evidence that the head injuries caused the death, and that any one of the three major head injuries was in itself sufficient to cause death.

The applicant contends that there was a reasonable possibility that death was not due to any blow struck by him and, therefore, the Crown had not established causation, beyond a reasonable doubt. The issue of causation was a question of fact, to be determined by the jury.[29] The fundamental question for the jury was whether the conduct of the applicant (whether by act or omission) contributed significantly to the death of the victim. It need not be the sole, direct or immediate cause of death.[30] A person may be guilty of murder as principal although his own act is not the immediate cause of death[31]. A person who with intent to kill does some act which substantially contributes to the death may be guilty of murder notwithstanding the fact that the immediate cause of death is the act of another person[32].

When, in any instance, it is suggested that the death has been caused by another person, subsequent to any act of the accused, that raises the question whether the chain of causation was broken. If the actions of one assailant caused an injury which would have resulted in the victim's death, but before the victim died a second assailant caused a new injury which accelerated the death, then it would be the second assailant who would be regarded as having caused the death, the first assailant being guilty of attempted murder[33]. It is a question of fact for the jury. The onus is on the Crown to establish beyond reasonable doubt that it was the accused who caused or contributed to the death.

In this case there was very little, if any, evidence to support the hypothesis that death was caused by the actions of someone other than the applicant. In any event, the evidence for the proposition, such as it was, was placed before the jury. The hypothesis could not have been strengthened by any evidence given by the applicant. The jury were not entitled to speculate, and the fact that an alternative hypothesis can be postulated does not mean that the verdict was unsafe and unsatisfactory[34]. Given the evidence of the actions which the applicant himself performed, and the proximity of those actions to the death it was open to the jury to dismiss as unreasonable the possibility that death was caused by the intervention of a second person[35]. Given the strength of the evidence directly implicating the applicant as the person who caused the death it is hardly surprising that the jury were satisfied as to the question of causation.

In my view, the evidence against the applicant in proof of causation was very strong and I entertain no disquiet as to the applicant's conviction.

90 A complaint that a conviction was unsafe and unsatisfactory is a question of fact which requires the court to make its own assessment of the evidence[36]. The question is whether, upon the whole of the evidence, it was not open to the jury to have been satisfied beyond reasonable doubt of the guilt of the applicant[37].

I am not persuaded that the conviction of murder, nor the two other convictions, were against the evidence. There was an abundance of credible evidence on which the jury were entitled to act. Nor do I believe that the convictions were unsafe and unsatisfactory.

None of the grounds of appeal against conviction has been made out and the application for leave to appeal against conviction should be dismissed. No application for leave to appeal against sentence was made to the court.

Having read in draft form the reasons for judgment of Eames, J.A., I agree in his Honour's reasons that the application should be dismissed.

[1] The applicant's father also used the surname Ovalsen. His statement to police was in the name Hocking, but in his evidence at committal he was addressed as Ovalsen.

[2] See The Queen v. McAuliffe [1995] HCA 37; (1995) 183 C.L.R. 108, at 113-114; Johns (T.S) v. The Queen [1980] HCA 3; (1980) 143 C.L.R. 108; Osland v. The Queen [1998] HCA 75; (1998) 197 C.L.R. 316.

[3] That procedure was approved in R. v. Portelli [2001] VSCA 183.

[6] [1981] VicRp 43; [1981] V.R. 443, at 449, per Young, C.J. and King, J.

[7] "Criminal Law" Smith And Hogan, 9th Ed, 1999, at 251. The author had regard to the decision of a naval commander in 1998 to seal off a burning engine room, thus consigning the crew members who were trapped therein to certain death but saving the ship and its remaining crew. Would a defence of necessity have been denied if a murder charge had been brought, he wondered?

[9] R. v. Rogers (1996) 86 A. Crim.R. 542, at 547.

[10] R. v. Hurley and Murray [1967] VicRp 57; [1967] V.R. 526, at 543.

[11] R. v. Darrington and McGauley [1980] VicRp 36; [1980] V.R. 353, at 358, but the House of Lords in R. v. Howe, supra, held that the defence was not available on a murder count to either a principal in the first degree or a principal in the second degree.

[12] See pars [75] to [79] hereafter.

[14] Hurley and Murray, at 543, per Smith, J., as approved in Darrington and McGauley, at 356, and R. v. Zaharias [2001] VSCA 168; (2001) 122 A.Crim.R. 586, at 588; and see R. v. Sharp [1987] 1 Q.B. 853.

[16] Re Knowles [1984] VicRp 67; [1984] V.R. 751, at 767; Re Ratten [1974] VicRp 26; [1974] V.R. 201, at 214; R. v. M.N.G. [2002] VSCA 7; R. v. Wakim [1998] 2 V.R. 46, at 51.

[17] R. v. Birks (1990) 19 N.S.W.L.R. 677, at 684-685. R. v. Ignjatic (1993) 68 A.Crim.R. 333, at 336.

[18] See Birks, at 685; R. v. Miletic [1997] 1 V.R. 593.

[19] Cannon and Rochford v. Tahche [2002] VSCA 84, at [56]-[59].

[20] Apostilides v. The Queen [1984] HCA 38; (1984) 154 C.L.R. 563, at 575; R. v. Harry; Ex parte Eastway [1985] 39 S.A.S.R. 203, at 205.

[21] R. v. Grimwade and Wilson [1995] VicRp 11; [1995] 1 V.R. 163 at 179-180.

[22] Supra, at 543; see too R. v. Zaharias, supra_,_ at 588; R. v. Lawrence [1980] 1 N.S.W.L.R. 122, at 141.

[23] The applicant provided this court with an opinion of psychologist Mr Paul Grech, who had been a counsellor at Port Phillip Prison between August and May 2000, and was subsequently asked by the applicant to give an opinion on various matters. That opinion, in my view, could not assist defences of necessity or duress.

[24] Crimes Act 1958, s.568(1).

[25] Plomp v. The Queen [1963] HCA 44; (1963) 110 C.L.R. 234, at 246-247.

[26] McAuliffe v. The Queen, at 112-114.

[27] It is to be noted, however, that the pathologist, Dr Robertson, did not detect any injuries to the neck. The significance of that fact was noted by Dr Byron Collins, a consultant pathologist who gave a report to the defence solicitor, but was not called to give evidence. The applicant produced that report to support his complaint about the deficiencies of the defence lawyers, but the failure to call that witness was anything but a tactical error, in my opinion.

[28] It is notable that although the applicant sought to contend before us that some of the injuries could not have been caused by the weapon he used, Dr Robertson, the pathologist, expressly said that none of the injuries was inconsistent with having been caused by the same weapon. Dr Robertson said that in view of her age each of the minimum three major blows to the head of the deceased might have also produced other, apparently separate, injuries elsewhere to the head.

[29] Royall v. The Queen [1991] HCA 27; (1990) 172 C.L.R. 378, at 387 per Mason, C.J.

[30] Reg v. Pagett [1983] EWCA Crim 1; (1983) 76 Cr.App.R. 279 at 288; Royall at 398, per Brennan, J.

[31] Osland v. The Queen [1998] HCA 75; (1998) 197 C.L.R. 316, at 324.

[33] R. v. Evans & Gardiner (No.2) [1976] VicRp 53; [1976] V.R. 523, at 527-528.

[34] Plomp v. The Queen, supra, at 246-247.

[35] See the analysis of the High Court of such a causation question in R. v. Puckeridge [1999] HCA 68; (1999) 168 A.L.R. 4.

[37] M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487, at 493, and at 494-495.

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Judgment (137 paragraphs)

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