R v Jensen [2009] VSCA 266

Court of Appeal (Vic)|2009-11-24|Before: NETTLE and WEINBERG JJA and HOLLINGWORTH AJA

[2007] VSC 199, Osborn J

CRIMINAL LAW - Conviction - Murder - Circumstantial case - Failure of Crown to call material witness - Whether witness so unreliable as to justify Crown's decision - Expectation that witness would give evidence - Whether judge erred in refusing application by defence counsel to direct Crown to call witness - Whether, in any event, Crown's failure to call witness productive of miscarriage of justice - R v Apostilides ; considered - Appeal allowed - No error by judge, but Crown's refusal to call witness productive of miscarriage of justice.

Kathryn Thornton, Solicitor for Public Prosecutions

1 Following a four week trial in the Criminal Division of the Supreme Court, on 20 March 2007 the applicant was convicted of the murder of his father, Marius Kristian Jensen and, after a plea in mitigation of penalty, on 13 June 2007 the judge sentenced the applicant for that offence to 20 years' imprisonment with a non-parole period of 16 years. The applicant now applies for leave to appeal against conviction.

2 At the time of the deceased's death, the applicant was 34 years of age and lived with the deceased on his property 'Sunnyside' on W. Schultz Road, Tarrington, Victoria. The deceased was a widower of 75 years of age who was still working as an apiarist.

3 On 2 February 2000 at approximately 8.15pm, the applicant attended at the Hamilton Police Station and told the police that he had found his father dead in the kitchen at 'Sunnyside' with a pool of blood beside him. Senior Constable McNaughton asked the applicant the following questions, to which he gave the following answers:

Q: Can you tell me what happened?

A: I was out in the garden when I heard a big bang, I then went inside and found him on the floor.

Q: Whereabouts in your house is your father?

A: In the kitchen.

4 Senior Constable McNaughton and Constable Simpson drove the applicant back to Sunnyside, arriving there at about 8.26pm, where they met other police officers by arrangement. Senior Constable McNaughton in company with Sergeant Goodwin and Senior Constable Dent then went into the kitchen in the dark using a torch. They discovered the body of the deceased lying on the floor in a pool of blood near the kitchen table with a bullet hole in the right side of the head with a white mass coming out of it and a trail of blood leading away from it. They also noticed that a pot belly stove in the kitchen was burning brightly even though it had been a very hot day. The temperature had reached 36.9 degrees and it was still above 32 degrees when the police arrived at the property.

5 Later, Sergeant Clarke, Sergeant Pickering and Constable Owen went into the house. They observed the deceased's body to be lying in the kitchen parallel to the table. His glasses were at his right side under his right arm. His false teeth were under the table and he had a wound to the right temple. There was blood coming from his left ear and there was a large pool of blood to the right side of his head. The firearm with which he had apparently been shot lay on the floor beside his left hand.

6 Subsequent examination revealed that the weapon was a modified 12 gauge 'Aya' brand Cosmos model break open single shot hammer shotgun. It had been significantly modified in order to convert it to a .38 calibre pistol. The modifications were of a good quality and would have required experience in welding. The applicant's brother, Colin Jensen, was an expert welder. The applicant and the deceased could also weld, but not as well as Colin Jensen.

7 The applicant told police that, apart from the deceased, he had been the only person at the property that day. He said that he believed the deceased was capable of committing suicide, because he was depressed over the death of his wife and because his bees were not doing well. It was later discovered that the deceased's bees were suffering from American brood disease, which is a fatal disease resulting in the destruction of hives. The applicant said that the deceased was also upset because he had cut some timber incorrectly, which meant that it may have been unsaleable and that there had been a problem between the deceased and Colin Jensen, but that Colin Jensen had not been to the property for at least a month.

8 A good deal of the objective evidence, however, pointed away from suicide. Although the deceased was depressed when his wife died in August 1994, over the following years he seemed to return to his former self and, at around the time of his death, he did a number of things which were ostensibly inconsistent with suicide. By 1999, he had enrolled in an introduction agency and spoken to at least one woman. In December 1999, he ordered a new Siamese kitten which he was to collect in early March, although ultimately he did not go through with the purchase. In January 2000, he placed an order for 50 queen bees for delivery in mid February 2000. On 1 February 2000, he placed an order for $1,000 worth of timber to construct bee boxes. On 2 February, the day of his death, he attended the Commonwealth Bank and also purchased grocery items and an Esky.

9 The applicant had been a member of the Army Reserve and received military training in the use of firearms and explosives. He was an avid reader of firearms literature and possessed a library of books on firearms, firearm accessories, forensic science, including DNA testing, fingerprinting, gunshot residue testing, and the manufacture and modification of firearms. The police found among the applicant's possessions a book entitled 'Forensic Clues to Murder', and that when it was picked up, it fell open easily at page 145. That page contained a detailed passage relating to the shooting of a person at a kitchen table, staged to appear as a suicide.

10 After leaving the Army Reserve in the early 1990s, the applicant continued to be involved with firearms. In July 1995 the deceased called the police out to 'Sunnyside' due to some sort of confrontation between the applicant and Colin Jensen. The police found the applicant in possession of a .22 calibre Star pistol with a silencer attached and Colin Jensen in possession of a .22 calibre rifle. The applicant and Colin Jensen were both charged with firearm offences and, upon conviction, both lost their shooters' licences and their rights to possess firearms.

11 In December 1998, the police again attended 'Sunnyside' and on that occasion located a number of cannabis plants which belonged to Colin Jensen. The discovery of the plants further strained the relationship between the deceased and Colin Jensen and thus, because Colin Jensen and the applicant were close, strained the relationship between the deceased and the applicant.

12 In June 1999, the deceased obtained an intervention order against Colin Jensen, which prevented him from visiting the property, and caused further strain on the relationship between the applicant and the deceased.

13 On 28 January 2000, the applicant telephoned a long-time friend, Colin Sinclair, and told him that he would not be attending Sinclair's wedding the following day. The applicant had previously accepted an invitation to the wedding but told Sinclair that someone was sick.

14 Some time after his initial interrogation by Senior Constable McNaughton, the applicant made a signed police statement concerning the circumstances in which he discovered his father's body. It differed in significant respects from his previous version of events. Whereas he had told Senior Constable McNaughton that he was in the garden when he heard a bang, in his statement he claimed that he spent most of the day inside the house because of the heat, and that he spent part of the day washing four towels which the police found in the bathroom. He stated that he had last seen the deceased alive 'about 4.30 to 5.00pm down in the shed', after which the applicant went to his room and watched television. He claimed to have seen 'Wheel of Fortune' and the news, and to have been waiting for 'A Current Affair' to begin, when he heard a loud muffled type bang which sounded like falling telephone books. That caused him to leave his room and go to the kitchen doorway, from where he said he saw the deceased lying on the kitchen floor close by a large pool of blood. He said that he then tried to call 000 but found that the telephone was not working. He claimed that it had also failed to work on some occasions in the past. Therefore, he got into his car and drove to Hamilton Police Station to report the matter.

15 On the version of events given by the applicant in his statement, there was between half and one hour from the time the applicant heard the bang until his arrival at the Hamilton Police Station. According to police calculations, however, it would have taken no more than ten minutes to drive the distance.

16 Subsequent police investigations established that some other parts of the detail given in the statement were also questionable. Although 'Wheel of Fortune' and the news had screened between 5.30 to 6.30pm on the day of the deceased's death, 'A Current Affair' was not shown on that day due to a telecast of the cricket. When police examined the telephone at the premises they found that the plug was disconnected from the wall and that once it was put back in the socket the telephone operated satisfactorily. Inquiries with Telstra did not locate any evidence of a previous fault with the phone or the line.

17 Examination of the ash remnants from the pot belly stove in the kitchen revealed material, zip, studs and other parts of a pair of Levi Strauss red-tab jeans, and later investigations established that the applicant owned a number of pairs of jeans of that type.

18 Inspection of the premises found it to be in a generally dirty condition with dirt and dust on most surfaces but the bathroom appeared to have been cleaned recently, with clean hand basin, bench tops and bath and the four freshly washed towels provided.

19 Forensic investigation revealed that a chair located on the opposite side of the table to the deceased had moved backwards from the table some time after the discharge of the weapon and prior to the deceased's body falling to the floor. It was possible that the deceased's body had displaced the chair as it fell to the floor. But it might also have been moved.

20 The applicant's hands were tested for gunshot residue ('GSR') but none was found there. GSR was, however, located on the rear right and rear left hand of the deceased, but there was none on his palms. GSR was also present on the deceased's glasses.

21 On 3 February 2000, Professor Stephen Cordner conducted a post-mortem examination. He considered that the cause of death was a gunshot wound to the right side of the head consistent with the muzzle of the firearm being in close contact with the skin at the time of discharge.

22 Professor Cordner found that there had been a slightly downward and backward trajectory with the bullet severing the mid brain from the cerebral hemisphere. It had not exited the skull and was located just under the skin near the left ear. Senior Constable Vincent later identified the bullet as a .38 special Winchester brand semi-jacket 110 gram hollow point round.

23 Under Ground 1, the applicant contended that the jury verdict was unsafe and unsatisfactory. In the applicant's submission, so much of the evidence went nowhere that the jury could not have reached a verdict of guilty without disavowing themselves of their oath and disregarding the trial judge's directions as to the drawing of inferences.

24 In our view, that is not so. Although the Crown's case against the applicant was wholly circumstantial, and it may not have been the strongest circumstantial case imaginable, we consider that it was open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt.

25 In favour of the applicant, it may be observed that the Crown was unable to identify a motive. There was no evidence of any breakdown in the relationship between the deceased and the applicant or even of any substantial disharmony between them. There was some evidence that the applicant stood to inherit the family property when the deceased died. But there was no reason to suppose that the applicant was in a hurry to take over the property, still less that it was so important to him to do so that he would consider killing his father in order to achieve it.

26 On the other hand, there was no evidence of absence of motive. It was a case of absence of evidence of motive and, as the High Court remarked in De Gruchy v The Queen,[1] while absence of evidence of motive is to be taken into account, 'it is difficult to say, that the absence of evidence in that regard is a matter of "positive significance", either in the sense that it is a weakness in the prosecution case or a strength in the defence case.'

27 Apart from the absence of evidence of motive, most of the evidence pointed towards the conclusion that the applicant shot his father. To start with, there were only three possible causes of death. They were that the deceased took his own life; that the applicant's brother Colin Jensen killed the deceased; or that the applicant killed the deceased. Any possibility that Colin Jensen killed the deceased was, however, severely prejudiced by the applicant's admission to police that Colin Jensen had not been to the property for approximately a month before the deceased's death and that, so far as the applicant was aware, the applicant was the only person other than the deceased on the property on the day of the deceased's death. Unlike the facts in R v Szitovszky,[2] on which the applicant relied, the applicant's admission to police that he was the only person present at the time of the deceased's death substantially excluded the possibility of a third party killer.

28 That left suicide or the applicant as the only reasonable possibilities and, despite some forensic evidence that the manner of the deceased's shooting was not inconsistent with a self-inflicted wound (it included both the position and angle of entry of the bullet and traces of gun shot residue on the index finger and backs of the deceased's hands, and Professor John Hilton, who was a consultant forensic pathologist called by the defence, was of the opinion that the wound was consistent with a self-inflicted wound), the objective circumstances suggested that suicide was unlikely.

29 Admittedly, the deceased was 75 years of age and slowing down, and was afflicted by an enlarged prostate and ischæmia. But as was earlier noted, he was still actively and enthusiastically involved in his lifetime occupation of apiarist. Although he had been mournful and depressed for some time after his wife's death, according to the bulk of the evidence his mental state had improved over time and he had adjusted. A number of his friends and relatives gave evidence that his behaviour was relatively normal and that he continued to go about his day to day business without any sign of depression or neurosis. It will be recalled that on the day of his death he carried out normal banking transactions and bought food and new equipment and he spoke of his intentions for improvements to his business and to acquire a cat to replace a pet which had died. He did not leave a suicide note or any other indication that he intended to take his own life.

30 Secondly, the deceased was shot with a bespoke weapon which, given the nature and circumstances of the deceased's existence and his predilections, he was unlikely to have possessed or had any interest in acquiring. Contrastingly, the applicant was shown to be someone who had an abiding interest in weapons and their modification and not at all unlikely to have had just such a weapon, regardless of whether it was made for him by Colin Jensen or came from another source.

31 Thirdly, although the bullet wound and the manner in which the deceased fell to the floor were not inconsistent with self-infliction, it was apparent from the reading material found at the house, particularly the book 'Forensic Clues to Murder', that the applicant may have studied the manner of arranging such a shooting to make it appear as a suicide.

32 Fourthly, the applicant appears to have changed his story as to where he was when he heard a loud bang and went into the kitchen to find his father dead. It will be recalled that the version of events he gave to Senior Constable McNaughton when first asked about the matter was that he was in the garden when he heard the bang and that he went from there into the kitchen. When later interrogated, he said that he had been in his room watching television for some time and that he went from there into the kitchen. The fact that he gave two competing versions of events so shortly after they occurred cast doubt on the credibility of both statements and was likely to lead to the rejection of his statement that he found his father dead.

33 Fifthly, it was evident from remarks which the applicant made to police before his hands were swabbed for GSR that he was aware of the evidential value of GSR and that it was likely that he would be tested for deposits of the substance on his hands. If he had shot the deceased, that increased the chance that he removed any trace of GSR from his hands by washing before reporting to police.

34 Sixthly, the applicant was unable or unwilling to account for the half to one hour between when he said he heard a very loud bang and went into the kitchen and saw his father lying dead, and when he reported to the police station. It was possible that he used that time to clean his hands and dispose of clothing and any other item which he considered might incriminate him in the killing.

35 Seventhly, the applicant said that the reason he had not telephoned the police straight away was because the telephone was not working. But, as has been noted, when police checked the telephone they found that it was working and, contrary to the applicant's statement to police, the records of Telstra implied that there had not been any problems with the telephone in the recent past. It was open to the jury to infer that the applicant lied about the telephone; and that was likely to cast further doubt on the credibility of his self-serving statements to police.

36 Eighthly, the applicant chose not to give evidence and, because he alone knew what had occurred, the fact that he did not testify as to how the deceased died, and as to what happened in the hour thereafter, meant that adverse inferences available to be drawn from the facts proved by the Crown could more safely be drawn.[3]

37 Ninthly, during the hour which followed the deceased's death, at least some part if not the whole of a pair of Levi Strauss red tab jeans were burned in the pot belly stove in the kitchen. There was evidence that Levi Strauss red tab jeans were the applicant's jeans of choice, of which he kept five pairs in a room at Colin Jensen's house. There was no suggestion that the deceased wore Levi Strauss red tab jeans, or that anyone else kept jeans of that kind at the house. It was open to infer that the jeans that were burned were the applicant's jeans.

38 Tenthly, although it was theoretically possible that the deceased began to burn the jeans before he died, there was no reason to suppose that he would have done so and, if he were about to commit suicide, one might have thought it most unlikely that he would do so. It was open to infer that the applicant burned the jeans.

39 Finally, if the jury were satisfied that the applicant burned his jeans, it was open to infer that he did so, following his father's death, because he was conscious that the jeans might implicate him in his father's death and sought, by destruction of the jeans, to eliminate that possibility.

40 It is not for us to re-try the case according to our perceptions of the strength of the evidence. It is rather to determine whether we consider that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty and, in making that assessment, to bear steadily in mind that the jury was the body entrusted with the primary responsibility of determining guilt or innocence and that the jury alone has had the benefit of having seen and heard the witnesses.[4] On that basis, we reject Ground 1.

Ground 2 - Publication of prejudicial material in local newspaper

41 Under Ground 2, the applicant complained of the publication of certain material in the Geelong Advertiser newspaper during the course of the judge's final charge to the jury. He contended that the publication necessitated that the jury be discharged and that the judge's failure to discharge them was productive of a miscarriage of justice.

42 We reject that contention. Although a trial judge has power to discharge a jury when something occurs that may adversely affect the fairness of the trial, there must be a high degree of need for the discharge,[5] and whether there is such a need depends, among other considerations, on 'the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact'.[6] The power is discretionary and a judge is allowed a good deal of leeway in exercising the discretion, because the judge will usually have a better appreciation of the significance of the event complained of, when seen in context, than can be discerned from reading transcript.[7]

43 In this case, the judge mentioned the Geelong Advertiser article to counsel on the morning of its publication, and proposed that he remind the jury that they were to ignore such things. Defence counsel replied that he was 'not overwhelmingly upset' by the article and that he agreed that a reminder of the kind to which the judge referred was all that was required. Then the judge reminded the jury (having earlier directed them to the same effect) that they were bound to ignore press reports, including the Geelong Advertiser report, and decide the matters in issue solely on the basis of the evidence. There was no exception to that direction or, more generally, to the course adopted.

44 In the circumstances, we see no reason to doubt that it was unnecessary that the jury be discharged. On that basis, we reject Ground 2.

45 The third ground of appeal is that the applicant was not fit to stand trial or became unfit for trial during the course of the trial. In his written submissions, the applicant contended that he was not of normal mental capacity and did not have the capacity adequately to define his condition to his own counsel, investigating police, the prosecutor or the court. He also alleged that the police, the prosecutor, Victoria Legal Aid, defence counsel and the trial judge all knew of what he described as his 'pre-existing mental condition' and yet failed to investigate it or how it might affect his ability to give instructions during the trial.

46 We reject those contentions. There is no evidence to support them and, apart from the applicant's bare assertion of mental incapacity, there is no other indication that the applicant was unfit to stand trial or became unfit during the course of the trial. To the contrary, there is evidence in the form of an affidavit sworn by defence counsel that at all material times throughout the trial the applicant was able to provide defence counsel with instructions and did so, and that defence counsel did not consider the applicant to be unfit in the sense comprehended by the law. In oral evidence before us, defence counsel added that, although the applicant had an abnormal personality, there was no intellectual deficiency that he was able to observe.

47 It is not without significance either, that in answer to a question asked by Weinberg JA in the course of argument, the applicant said that his condition was the same now as it was at the time of the trial. It was apparent to us from the way in which the applicant argued his case before us that he had a sound grasp of the issues and that he argued his application clearly, rationally and forcefully by reference to the issues. There is no substance in Ground 3.

48 Under the heading of Ground 4, the applicant advanced a further contention that, because defence counsel told the judge in the course of the plea that: 'It never ceased to amaze my instructor and [me] how far away from the reality of the trial [the applicant] seemed to be', it should be concluded that defence counsel knew that the applicant was unfit to stand trial and that a miscarriage of justice was caused by defence counsel's failure to bring that fact to the attention of the trial judge.

49 We reject that contention too. It goes no further than the argument advanced under Ground 3. There is no evidence to support it, and it is contrary to defence counsel's affidavit and uncontradicted oral evidence.

50 The essence of Ground 5 is a complaint that defence counsel failed to act in accordance with the applicant's instructions to call Colin Jensen as a witness for the defence, and thus caused a miscarriage of justice.

51 We reject that ground too, for two reasons. First, it is not a basis to set aside a conviction that defence counsel may have acted without or contrary to instructions unless counsel's actions are shown to have constituted a material irregularity which may have affected the outcome of the trial.[8]

52 Secondly, the evidence is clear that the reason for not calling Colin Jensen as a defence witness was that defence counsel was of the view that it would not assist the applicant to do so and that the applicant, having been so advised of counsel's opinion, accepted his advice.

Whilst I was of the view that the Crown ought in fairness to [h]ave called the accused's brother, Colin Jensen, at no time was I instructed by the Applicant that I should call him. In this regard, I formed the view that it would be most disadvantageous to the Applicant if Colin Jensen were to be called in the Defence case and I discussed that with [the Applicant]. The likelihood was that I could only lead evidence from [Colin Jensen]; however, the Crown could subject him to cross-examination, which was not in the applicant's best interest. I was also of the view that the Crown would inter alia attempt to lead evidence of the accused and his brother['s] efforts to thwart the police investigation by the destruction of a listening device that they located in a tractor or similar.

54 The applicant cross-examined counsel on his affidavit, but that only served to emphasise the truth of what counsel said in the affidavit. Counsel explained that, initially, the applicant had been resistant to the idea that Colin Jensen should be cross-examined but later agreed to that course once persuaded that Colin Jensen would be able to claim the privilege against self-incrimination. The prosecutor later announced his decision not to call Colin Jensen as a Crown witness and declined to call him even for the limited purpose of enabling defence counsel to cross-examine. That led to the debate and judge's ruling to which we shall come. Then, at the conclusion of the Crown case, counsel discussed with the applicant whether Colin Jensen should be called as a defence witness. He told the applicant it was unlikely that Colin Jensen would admit being the killer, or to having been at the property on the day of the killing and, in those circumstances, that the effect of calling Colin Jensen was likely to be to eliminate the reasonable possibility of Colin Jensen having been the killer. Counsel said that he also explained that there was a further 'down-side' inasmuch as the Crown would probably seek to cross-examine Colin Jensen to impeach the applicant's credibility. Counsel noted that he was particularly concerned that the applicant and his brother had been detected destroying a police listening device installed on the property during the police investigation of the deceased's death and by the very damaging effect which that would have on the minds of the jury.

55 The applicant also gave oral evidence before us, but it was unimpressive. To begin with he said that he had not had a discussion with defence counsel as to whether Colin Jensen should be called as a defence witness and that defence counsel had not told him that he was opposed to calling Colin Jensen as a defence witness. Further on in his evidence, however, he said that there was a discussion of the evidence to be called and that he (the applicant) did not 'intend' to call Colin Jensen. Later still, he said that he had memories of a discussion at the close of the Crown case about calling Colin Jensen but that he 'honestly' could not remember what occurred that day.

56 The net effect of the applicant's oral evidence, therefore, was substantially to corroborate counsel's testimony.

57 Ground 6 is predicated upon the contention that, given the applicant's mental state, a combination of errors on the part of the trial judge, the prosecutor and his own counsel, denied him a fair trial. For the reasons already set out above, in relation to Grounds 3 and 4, this Ground is not made out.

Ground 7 - Refusal of the Crown to call Colin Jensen as a witness for the prosecution

58 Under the heading of Ground 7, the applicant contended that a miscarriage of justice resulted from the Crown's refusal to call Colin Jensen as a witness for the prosecution or to make him available for cross-examination by defence counsel. In our view, there is force in that contention.

59 During the trial, the Crown's failure to call Colin Jensen was the subject of application by defence counsel for the judge to call him or for the judge to make adverse comment concerning the Crown's refusal to call him. In refusing that application, his Honour ruled, inter alia, that:

The relevant principles of law are stated in The Queen v Apostilides.[9] 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:[10]

'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.'

...

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, [the prosecutor in this case] 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.

By this last consideration I mean [the prosecutor] 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.[11]

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

In closing submission, [defence counsel] 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 [defence counsel] to re-agitate the issue of evidence from Colin at the conclusion of the Crown case in any manner he sees fit.[12]

60 The judge was not in error in so deciding. It was not for his Honour to determine the validity of the prosecutor's decision. As the High Court made plain in Apostilides,[13] the prosecutor alone bears responsibility for deciding whether a person will be called as a witness and a trial judge is not called upon to adjudicate on the sufficiency of the prosecutor's reasons for decision. But, as the High Court also laid down in Apostilides, a decision of a prosecutor not to call a witness may 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. And as the High Court went on to make clear:

A decision whether or not to call a 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.[14]

61 Consequently, it is not inappropriate for a judge to question a prosecutor's decision not to call a material witness and, if the judge is so disposed, to suggest that the prosecutor should reconsider the decision. The judge may also choose to remind the prosecutor of the prosecutor's duty to take adequate steps to truly inform himself or herself that the putative witness really is unreliable in the relevant sense, and to inquire of the prosecutor whether he or she has conferred with the witness in the manner essayed in Tran;[15] and, if not, how it is that the prosecutor can be sure that the witness is unreliable in the relevant sense. And if the judge comes to the view that the prosecutor's decision is not or may not be soundly based, the judge may think it necessary or desirable to make that clear to the prosecutor - because that may help to avoid a miscarriage - and to remind the prosecutor, as the High Court said in Apostilides, that:

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.[16]

62 So to say does not imply that a judge who does not do that is guilty of appellable error. As we have said, as the law stands after Apostilides, the responsibility for failure to call a relevant witness rests with the prosecutor alone. But questions of responsibility aside, in some cases the risk of miscarriage justifies prophylactic judicial intervention and, in this case, there were several factors which suggested that it was warranted.

63 In the first place, Colin Jensen's name appeared on the presentment and he was expected to be able to give evidence material to the matters in issue in the trial.

64 As the judge observed in his ruling, the defence case was that the Crown were unable to exclude suicide as a reasonable possibility or, if not, that someone other than the applicant killed him. In order to rebut that defence, the Crown led evidence from a range of the deceased's friends and acquaintances to the effect that he did not appear depressed or irrational in the period leading up to his death and that he seemed to be interested and engaged in a range of activities. It also sought to establish through some of those witnesses that the deceased did not get on with the applicant and was scared of him, that the applicant had weapons, and that the deceased had become disenchanted with the applicant because the applicant sided with Colin Jensen concerning the intervention order proceedings. But according to Colin Jensen's police statement, he was able to give evidence that the deceased had been depressed and behaving irrationally in the years and months leading up to his death. He could also say that he believed that the applicant got on reasonably well with the deceased and did some shopping for him and made sure that the deceased got some food. He could say, too, that there was no good reason for the deceased to seek an intervention order - it seemed to Colin Jensen to be the result of a degree of irrationality associated with the deceased's age and decline - and that, as opposed to there being much of a dispute about it, he had consented to the making of the order. In his record of interview, he stated that, as far as he knew, the applicant had not had any weapons after losing his shooter's licence some years before the deceased's death.

65 It followed that, if Colin Jensen's evidence were accepted, it had the potential to increase the possibility of suicide and, if suicide were rejected, to reduce the possibility that the applicant was the culprit.

66 In the second place, as the judge noted in his ruling, defence counsel wished to cross-examine Colin Jensen in order to establish that he had more reason than the applicant to kill the deceased. The judge characterised that as seeking to establish that Colin Jensen was an unreliable witness and to attack him as a liar. In the judge's view, that added credibility to the Crown's refusal to call Colin Jensen. But, if we may say so with respect, that is not the way we see it.

67 As appears from defence counsel's application for the judge to call Colin Jensen, counsel's object was not to demonstrate that Colin Jensen was a liar but to have him acknowledge the truth of facts which suggested that he may have been the killer:

COUNSEL: I find it difficult to articulate what most exceptional circumstances would be in the case. In this case, your Honour, this is not a flight of fancy to suggest that Colin Jensen may well have been the killer but there is some real concern and obvious real concern on the part of the police, that he may well be implicated if in fact not the killer. He's the man with the motive; he's the man who's threatened to kill his father; he's the man who's been excluded from the premises subject to an intervention order; he's the man who it's suggested is going to be excluded from the will; he's the man who has the capacity to make this weapon; he's the man who has the tools and equipment that would make it and remnants, perhaps from the particular weapon, are found in a shed that he has access to.

In my submission there would be a gross miscarriage of justice if I was not permitted to have the opportunity to cross-examine Mr Colin Jensen.

...

I should say that the point I should have made was the factual circumstances in this case are such that they are exceptional because there's quite a lot of material that suggests that the brother either was involved or was indeed the killer, and it's certainly been, if you read the police investigation, he's occupied as much time in the police investigation of this matter as my client has.

So, in my submission, the factual circumstances of this case are such that it's not just a vague suggestion that some other person who was seen in the area, who the police know but who's [not] interviewed and, for one reason or another, are happy with and the Crown's decided not to call. It's not some vague amorphous figure that may or may not be involved. This is a man who's very much part and parcel of this case, part of the unfolding chronology of events. It's going to be mentioned throughout the trial repeatedly as to different aspects.

Now, if I can lead from someone that the brother was excluded from the premises, well, that's fine, but I don't get very close to making him a likely candidate, but on the material I placed before you, which could be extracted if I had the power of cross-examination, there would be a good case to put before the jury that this is another possibility.

In our view, there was nothing improper about that objective, or the manner in which counsel proposed to go about achieving it, and it did not add credibility to the Crown's decision to refuse to call Colin Jensen.

68 In the third place, there are the reasons which the Crown advanced for refusing to call Colin Jensen. His Honour listed them in his ruling, as follows:

(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.

In our view, none of them amounts to the sort of identifiable circumstances which clearly establish that Colin Jensen was an unreliable witness within the meaning of Apostilides.

69 Starting with the covert tape recordings of Colin Jensen's discussions with the applicant, the fact that the applicant and Colin Jensen were close is really beside the point. It is not a reason for the Crown to refuse to call a material witness that the witness is a friend or relative of the accused,[17] or that the witness is expected to give evidence which is favourable to the accused.[18] And despite our request that the Crown identify the specific passages of the covert tape-recordings on which it relies, none were so identified.

70 In our view, such indications of unreliability as there may be in the recordings fall a long way short of those which were said to be sufficient in Tran,[19] where the prosecutor had spoken to the putative witness and he had made plain that he did not intend to tell the truth, or those which were said to be enough in R v J (No 2),[20] where it was part of the Crown's case that the putative witness had condoned the offences, and she had stated that she would refuse to answer questions on the grounds of privilege against self incrimination. Here, the most that one could take out of the recordings is some degree of suspicion that Colin Jensen might not have been completely truthful in all aspects of his evidence.

71 The same is true of the second suggested justification - that Colin Jensen lied to police when he told them he had no knowledge of police listening devices which he was known to have destroyed. That might be grounds for some suspicion that he would have been less than completely truthful in some aspects of his evidence. But, in our view, it was certainly not a basis to conclude that his evidence was likely to be so unreliable as to make this one of those rare cases in which the Crown is relieved of the obligation of calling a material witness.

72 The third suggested justification is equally unconvincing. Taking the police statement first, the only matters identified by the Crown as causing concern were that Colin Jensen gave a different version of events to other witnesses as to his relationship with the deceased and that he said that he had previously been arrested for cultivating ten pots of cannabis seedlings when in fact he had been convicted of cultivating 322 cannabis plants. We find that unpersuasive. In point of fact, it is not clear that Colin Jensen's version of the relationship was false. All that appears from the evidence is that it was different to the views expressed by a number of other witnesses. For all one knows, it is possible that Colin Jensen's version may have been more accurate than the others and, if it were not, that it was nevertheless what he believed.

73 As to the number of marijuana plants, it seems inherently unlikely that Colin Jensen would knowingly have told the local police a lie about the details of an offence with which they had been concerned and of which, it appears from the transcript of the covertly recorded conversations, they knew the details. As counsel for the Crown conceded, it may also be that the 322 plants were the ten pots of seedlings. But even taking the apparent inconsistency at its highest, a lie about the number and kind of plants with which Colin Jensen had been caught some time before the deceased's death is hardly persuasive that he was likely to be so unreliable in evidence about the matters in issue in the trial that he should not be called.

74 The records of interview do not take the matter any further. We asked the Crown to identify the passages on which the Crown relied to establish the unreliability of Colin Jensen's evidence, and none were identified. Nor could we find any.

75 The cross-examination at the committal hearing does not assist the Crown either. Colin Jensen was asked about a number of matters mentioned in his statement and he appears to have given straightforward and apparently truthful answers to most of those questions. Asked about the deceased's state of mind he said that his main observation was that, after the death of his wife, the deceased became very quiet and withdrew into his inner self. That appears to have been the case. Questioned about his arrest for cultivating marijuana, he admitted that he had been arrested and said that he did not blame his father for his arrest because he had been told by police that the plants had been spotted by an aircraft. Asked about the intervention order, he admitted that there had been an allegation that the basis on which the order had been sought was that he, Colin Jensen, had been fighting with the applicant, but he said that he had gone to court and consented to the order and that he had not breached it. The Crown contended that the real reason for the intervention order was because Colin Jensen threatened the deceased. But that was never established as a fact and, even if it had been, it would not have meant that Colin Jensen was necessarily lying when he attributed his father's motivation for seeking the intervention order to a fight between Colin Jensen and the applicant.

76 Colin Jensen was asked about his father's habits and he answered that the deceased had developed some odd traits - he said that towards the end of his life the deceased did not wash and he tended to defecate outside the house - and it is not suggested that any of that was false. He was asked whether his father had any weapons, and he answered that he had had a .22 rifle and two shotguns, which he had last seen in 1976; but that there were no weapons on the property when he left it approximately a month before the deceased's death. It is not suggested that he was lying about that either. Finally, he said that the applicant had never said that he wanted to kill the deceased and that the deceased had never spoken about changing his will and he believed that the deceased had died without leaving a will. We see no basis on which to conclude that that was a lie and none has been suggested.

77 That leaves the question of whether the failure of the Crown to call Colin Jensen resulted in a material miscarriage of justice. In our view it did. For, as counsel for the Crown fairly conceded, even if the Crown's failure to call Colin Jensen did no more than deprive the jury of a different view of the deceased's state of mind and his relationship with the applicant, it nevertheless deprived him of a chance of acquittal to which he was entitled. When one adds that it also deprived him of the ability to cross-examine Colin Jensen as to the latter's motive and opportunity to kill the deceased, the injustice was very substantial.

78 It is true that defence counsel could have called Colin Jensen as a defence witness and, as defence counsel frankly admitted in his evidence before us, he may have overlooked the opportunity to renew his application for Colin Jensen to be called for cross-examination at the end of the Crown case. But, as Apostilides shows, the fact that the defence was able to call Colin Jensen as a defence witness does not overcome the miscarriage of justice which occurs as a result of the Crown's refusal to call a material witness, and it has not been suggested that the judge's attitude would have been any different at the end of the Crown case than it was at the beginning.

79 Finally, as Counsel for the Crown also properly conceded, the proviso cannot be applied. It follows that Ground 7 is made out.

Ground 9 - Failure to revisit question of making Colin Jensen available for cross-examination

81 Under Ground 9 it was said that the judge erred by failing to revisit the question, at the close of the Crown case, of whether the Crown should make Colin Jensen available for cross-examination.

82 We reject that suggestion. The judge was entitled to assume that, if defence counsel wished to press the application, he would do so and, if he said nothing about it, it was because he had determined not to press it.

83 In the result, the conviction should be quashed and it should be ordered that a new trial be had.

[1] [2002] HCA 33; (2002) 211 CLR 85, 93 [30] (Gaudron, McHugh and Hayne JJ).

[3] Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, 228-9 (Mason CJ, Deane and Dawson JJ).

[4] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494; Jones v The Queen (1997) 191 CLR 439, 451 and 468; and Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250, 255-6. See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

[5] R v Boland [1974] VicRp 100; [1974] VR 849, 866; Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, 440; R v Hortis [2004] VSCA 143, [18]-[19]; and R v Halliday [2009] VSCA 195, [65].

[6] Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427.

[7] Ibid 440-441; and R v Brown [2000] VSCA 102.

[8] Re Knowles [1984] VicRp 67; [1984] VR 751, 767-769; R v Birks (1990) 19 NSWLR 677, 685-686; and TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 149 [79] (McHugh J).

[12] R v Jensen [2007] VSC 77, [12]-[24].

[15] Tran v Magistrates' Court of Victoria [1998] 4 VR 294; see also Martin Hinton, 'The Prosecutor's Duty with Respect to Witnesses: pro Domina Veritate' (2003) 27 _C_rim LJ 260, esp, 267 and 269-270.

[17] R v Armstrong [1998] 4 VR 533.

[18] The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563.

[19] Tran v Magistrates' Court of Victoria [1998] 4 VR 294. See also R v Shaw (1991) 57 A Crim R 425, 436.

At a glance

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Judgment (115 paragraphs)

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Cases Cited (11)