Director of Public Prosecutions v Jensen
[2006] VSC 179
•10 May 2006
| IN THE SUPREME COURT OF VICTORIA |
AT WARRNAMBOOL
CRIMINAL DIVISION
No.1457 of 2004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOUGLAS VICTOR JENSEN |
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JUDGE: | EAMES JA | |
WHERE HELD: | WARRNAMBOOL | |
DATES OF HEARING: | 8-10 May 2006 | |
DATE OF RULING: | 10 May 2006 | |
CASE MAY BE CITED AS: | DPP v Douglas Jensen | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 179 | 1st Revision 24.5.06 2nd Revision 09.06.06 |
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Ruling – Criminal law – Evidence – Relevance and admissibility of evidence – Relationship evidence – Experiments – Issue whether death suicide or murder – Circumstantial evidence – Evidence of conduct of deceased before death – Statements by deceased – Crime and murder books seized at scene – Duties of prosecutor as to calling witnesses.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M.M. Williams, S.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Defendant | Mr W.M. Toohey. | Victoria Legal Aid |
HIS HONOUR:
Ruling on admissibility of evidence
Douglas Jensen stands accused of the murder of his father, Marius Jensen, who died from a gunshot wound to his head suffered at his farm, near Hamilton, on 2 February 2000. Before empanelment of the jury, Mr Toohey, counsel for the accused man, has applied to me to exclude a range of evidence which the prosecutor intends to lead in the accused’s trial.
Douglas Jensen lived at the farm and was present at the farm at the time of his father’s death. The deceased died in the kitchen of the farmhouse. A modified shotgun, which had been shortened and converted to fire .38 calibre bullets, was found by his side on the kitchen floor. The Crown case is that Douglas Jensen fired the fatal shot and then interfered with the scene in order that it appear that the death had been a suicide.
The accused is one of two brothers. His brother Colin Jensen was not living at the farm when his father died. He had been excluded from the property as a result of intervention proceedings taken against him by his father about 8 months before his death. Similar proceedings had not be taken against the accused, Douglas Jensen, but the Crown seeks to establish that the relationship between the deceased and the accused was itself one of hostility and that the deceased had not conducted himself in a manner consistent with his intending to commit suicide. Colin Jensen had also been arrested by police investigating the death of Marius Jensen, but, after being interviewed, no charge was laid against him.
The accused man gave an account to police that he had been on the property when he heard the fatal shot and had gone to the door of the kitchen, but did not enter the kitchen. He said that he saw his father slumped on the kitchen floor, obviously dead. (On the Crown case Douglas Jensen gave conflicting accounts as to precisely where he had been when he heard the shot). The accused told police that having been unable to get the telephone to work at the house he then drove some 8 kilometres to Hamilton police station where he reported that his father had committed suicide. He then returned to the scene, accompanied by police officers. The accused told police that he had been the only other person present at the property at the time of the death.
The Crown case relies on circumstantial evidence. Save for the brief outline stated above, it is unnecessary to further elaborate the evidence on which the Crown relies in proof of murder. For present purposes, it is sufficient to say that if the Crown proves beyond reasonable doubt that the death was not suicide then the admission by the applicant that he believed he was the only other person on the property would assume great significance. The defence would, however, contend that the Crown could not then exclude the possibility that another person may have been present at the scene, in particular Colin Jensen.
The disputed evidence
The evidence to which objection has been taken may be conveniently dealt with under a number of headings.
First, there is what the prosecutor has called relationship evidence. That takes several forms, and not all of the proposed relationship evidence is the subject of objection.
The “relationship” evidence to which objection is taken concerns a particular incident at the farm on 8 June 1999 arising out of the service of an intervention order on Colin Jensen, at which time the accused was present, and also concerns a note written by the accused concerning that incident. In addition, objection is taken to proposed evidence from several witnesses as to statements said to have been made to them by the deceased man concerning his relationships both with the accused and also his brother.
The second category of evidence to which objection was taken, concerns evidence of the behaviour and statements of Marius Jensen on which the Crown relies to demonstrate the improbability that he was contemplating suicide. The objections were taken on grounds of hearsay and relevance. In his written outline Mr Toohey identified these as being “various incidents carried out by the deceased prior to his death”. He submitted, in broad terms only, that none of the proposed evidence was capable of supporting an inference that the accused man was not contemplating suicide. In the course of argument counsel gave by way of examples the evidence that the deceased man had arranged the purchase of a new cat shortly before death but had not taken delivery of it at the time of his death and evidence that he had recently purchased new timber to construct bee hives. Counsel did not seek to more precisely identify the evidence encompassed by the objection. In my view, evidence which had a tendency to show that the deceased was not contemplating suicide, and was acting as though he expected to remain alive beyond the date of death would be relevant and, if in admissible form, ought be admitted.
The third category of evidence relates to the conduct of experiments conducted by police concerning a pot belly stove which was found blazing in the kitchen when police arrived at the scene. This evidence is said not to be probative and to be irrelevant. In addition, objection is taken to evidence that the fire had been alight at the time of the arrival of police and as to the contents of the stove which were examined after the fire had been extinguished. That evidence is said to invite mere speculation by the jury.
The fourth category of evidence to which objection is taken, is a range of evidence which is said to be irrelevant, speculative, or to be dependent on inadmissible hearsay evidence. This includes evidence of the presence of four clean towels in the bathroom; evidence of the finding of the accused’s fingerprints on an envelope in which there was a book dealing with the home manufacture of firearms; evidence as to the very late cancelling by the accused of his acceptance of an invitation to a friend’s wedding, which event would have required him to be absent from the farm on the day of his father’s death. Mr Toohey contended, broadly, that none of these items had probative effect or, if they did, had such probative value as to outweigh their prejudicial effect. I am satisfied that each of the items was relevant and admissible and I would not exclude them in the exercise of my discretion.
The fifth category is evidence of what is said to be the accused’s obsession with firearms, and his familiarity with guns generally. The prejudicial effect of that evidence is said to outweigh any probative value it might have. The prosecutor has indicated that no evidence will be led as to any “obsession” with firearms, but his familiarity and expertise with weapons will be led in evidence and, as I understand it, Mr Toohey does not dispute the relevance of that evidence when stripped of pejorative characterisation.
The sixth category is evidence concerning a number of books and publications seized by police at the farm. Counsel submits that that evidence is neither relevant nor probative of any fact in issue. One book in particular has been highlighted. On 4 February 2000 Det Sen Constable Kira Olney located a trunk containing books on topics of crime and murder, including a book titled “Forensic Clues to Murder – Forensic science and the art of crime detection”. The spine of the book was very loose and it opened at page 145. On that page was an account of a person tried for the murder of his mother who was found shot in the head in her kitchen. Her son found her after hearing the gunshot and then running to the kitchen. He told police his mother had shot herself.
Mr Toohey submitted that the book was not probative. It was not seized by police until 20 August 2001. On that occasion, as on 4 February 2000, the trunk was located in a locked shipping container which was located on the property, sited among other out buildings near the homestead. The key to the container was provided to police, both times, by the accused. The Crown contends that the container stored equipment belonging to the accused and was used by him as a workshop. Mr Toohey submitted that there was no evidence that the book belonged to the accused, that he had ever read it, or that if he had read it he had done so before the death. In my opinion, it would be open to the jury to draw each of those conclusions adversely to the accused. Counsel, alternatively, submitted that the prejudicial effect of the book far outweighed its probative value.
This is a case in which the Crown theory is that the accused staged his father’s death so as to appear to be a suicide. In my opinion, while the jury will require a firm direction not to misuse this evidence it does have probative value in the circumstances of this case, and I consider that such value outweighs its prejudicial effect.
The prosecutor has identified other books relating to topics such as murder and crime investigations which the evidence suggests were owned by the accused. Mr Toohey has indicated that he may object to some of those books, but at the time of this ruling he is discussing the matter with the prosecutor and I will say no more as to the admissibility of the other books, save to say that at the moment no submission has been made to have them excluded from evidence. As matters stand, it would seem to me that any objections would relate only to questions of weight, and in a circumstantial case the weight to be given to such evidence is a matter for the jury, having regard to the totality of evidence. I would extend an appropriate direction to any such books.
Prosecutor’s decision as to calling witnesses
Defence counsel also objected to the proposed course of the prosecutor not to call two witnesses, Colin Jensen and Alan Lyons. The latter is, and was, a friend of both brothers. The prosecutor proposes neither to lead evidence from those witnesses, nor to proffer them for cross-examination. As was made clear in R v Apostilides[1], it is the responsibility solely of the prosecutor to determine who shall be called as a prosecution witness. In exercising that responsibility the prosecutor must address the well recognised obligations which her duty as prosecutor carries, but once taken the decision is not one which the trial judge may overturn.
[1](1984) 154 C.L.R. 563, at 575-6.
Ms Williams informed the Court that she had formed the opinion, for reasons that she elaborated, that neither was a witness of truth, and in the case of Alan Lyons that he also had no relevant and admissible evidence to give.
The evidence which defence counsel seeks to have called from Lyons is contained in a statement said to have been made by the deceased at the funeral of his wife, some five years before his own death. Marius Jensen was said to have stated that he was going to commit suicide. In my view, that evidence is far too remote in time to be admissible in evidence: see R v Iuliano[2] and Wilson v The Queen[3]. Likewise, proffered evidence by Lyon that the deceased “went a bit funny” and indulged in “strange behaviour” in years following the funeral of his wife and up to the last time he saw him (which was some eleven months prior to the death of Marius Jensen) has no probative value and amounts, at best, to opinion evidence. Insofar as there is direct evidence that he observed odd behaviour (in particular, that Marius Jensen “dropped his pants and defecated in front of me”) on the last occasion they met, I am unable to see how that evidence is capable of supporting the conclusion that the death was suicide rather than murder, or otherwise is relevant to any issue in the trial. Finally, Lyons offers evidence of statements made to him by the accused, to the effect that the accused believed the death was suicide. As presently advised, that evidence seems to me to be self serving hearsay and to be inadmissible.
[2][1971] V.R. 412, at 416, per Winneke, C.J., Little and Gowans, JJ.
[3](1970) 123 C.L.R. 334, at 339, per Barwick, C.J.
Having considered the submissions of defence counsel, the prosecutor maintained her decision as to these witnesses. I make no critical comment as to that decision; it is rightly a matter for the prosecutor, and the factors she took into account have been placed on transcript. I merely observe that the factors identified appear to have been relevant and appropriate matters to have taken into account.
Relationship evidence.
I will deal next with what has for convenience been called relationship evidence, although I acknowledge the force of the contention of Gleeson, C.J. in R v Frawley[4] (which was endorsed by Heydon, J.A. in R v Clark[5] and by Duggan, J., with whom Doyle, C.J. and Vanstone, J. agreed, in R v Collie[6]), that it is unhelpful to employ that term, and that the better approach is to consider, in turn, each item of evidence and test it against the question whether it constituted direct evidence of any fact relevant to a fact in issue.
[4](1993) 69 A.Crim.R. 208, at 222-3
[5][2001] NSWCCA 494, at [99]. See, too, the remarks of Callinan, J. in Gipp v The Queen (1998) 194 C.L.R. 106, at 168-169 [181]-[182].
[6][2005] S.A.S.C. 148 at [66]-[73].
The prosecutor, Ms Williams, seeks to lead evidence of statements by the deceased man and of incidents involving both the accused man and his father which, in the first place, she submits are relevant to establishing, generally, the nature of their relationship. Such evidence is admissible she submits, to avoid the jury having to determine the facts while viewing the relationship in a vacuum, and also because it was relevant to proof of facts in issue.
In the course of their submissions neither counsel cited authority, but prior to the hearing I had provided counsel with a list of cases which I considered of particular relevance to this issue and also to other issues which counsel proposed to deal with in preliminary submissions, and I take it that counsel were familiar with those cases and that there was no disagreement as to my application of the principles stated in the cases, to which I refer in these reasons.
The danger of a jury assessing the facts of a murder case in a vacuum, that is, without knowledge of the state of the relationship between the protagonists, was identified by Menzies J. in Wilson v The Queen[7]. As Barwick, C.J. held in Wilson[8], however, the fundamental rule is that the evidence must be relevant to the question to be decided by the jury. Ms Williams submits that the evidence has direct relevance, in some instances as to motive and in other instances as to the state of mind of the deceased and the improbability that he committed suicide.
[7]See Wilson v R (1970) 123 C.L.R. 334, per Menzies J., at 344.
[8]At 337.
I identify the disputed “relationship” evidence as follows:
· First, evidence of events during, and of a draft letter following, an incident at the farm on 8 June 1999. On that day armed police from the special operations group, and also Hamilton police, attended the farm to serve an application for an intervention order on Colin Jensen. The order was sought by Marius Jensen. The police then unsuccessfully searched the property for firearms and explosives, which had been reportedly buried on the property by the two sons. No such items were found. On 20 August 2001, when police attended the farm to arrest the accused they found a draft letter addressed to the Chief Commissioner of Police, in the handwriting of the accused. Parts of the letter were plainly written after the death, but earlier sections might have been written before the death. The accused complains in the letter that his father had given “utterly false information” to police, which led police to believe that the accused may have booby trapped the cellar with explosives. The accused complained about the fact that his father, “now deceased”, had not been charged with making a false report to police. The letter concludes that “my treating doctor” stated that Marius Jensen “had placed my life in danger by getting the police whipped into a frenzy”. The letter also includes paragraphs in which the accused states that he is being treated by a psychiatrist for a “major depressive illness”. He states that while he was trained in the Army to use explosives and to make booby traps he would never use that training in civilian life.
· Secondly, evidence concerning an incident on 21 July 1999. On that day the intervention order against Colin Jensen, came into effect and continued until 19 January 2000. The order obliged Colin Jensen to cease residing at the farm and, as a result, he moved to Hamilton. Evidence is sought to be led from the brother of the deceased man, Niel Jensen, that the accused sided with his brother and blamed Marius Jensen for having caused Colin Jensen to cease residence at the farm.
· Thirdly, evidence of Annette Robin Yeates. She made a statement and supplemented that by evidence in the committal of a conversation with the deceased in November 1999. She said he “seemed uneasy about the boys”; “that Doug had a bad temper and he felt that that would get him into strife at some time”; “that he was scared of the boys”. She said he spoke of “arguments and unrest in the house”, but she could not recall the exact words. Additionally, the deceased told her that Colin had been forced to move out because of problems between them, and that: “he would have to change his will and that he did not want the boys to be the beneficiary of his will. He did not say when or how he was going to change his will but just indicated that the boys would not be beneficiaries”.
· Fourthly, evidence of Stephen Charles Clegg. He said that he saw Marius Jensen a week before the death. The deceased was living in a caravan outside the house. He had only brought the caravan about a month or two before. “Marius had previously commented to me that the caravan was safer than the house”; “Marius was shit scared of Colin, not so much Doug”. Marius Jensen told the witness that “the boys think I have lived too long”. The witness said that this made him very uneasy. He said similar words had been said some five or six years earlier but this time the statement was much stronger.
· Fifthly, evidence of Niel Jensen. The brother of the deceased made two statements. In the first statement he said that the accused told him of threats made to him by Colin Jensen, and that both Niel Jensen and his brother Marius took out intervention orders against Colin Jensen, as a result of which Colin Jensen was obliged to move off the property. He said “Douglas seemed to be supporting Colin, not his father. It was quite clear where Douglas’ loyalties lay”. The witness also referred to specific threats against Marius Jensen made by Colin, as reported by Marius Jensen, and a threat overheard by Niel Jensen. In his second statement he said that after the death all “the boys” could do was run down Marius Jensen “and say what a bastard he was to them”.
Before addressing the arguments concerning each item of evidence I return to the principles, which, in my opinion, govern the issue.
Gleeson C.J. observed in R v Frawley that the evidence that was admitted in Wilson was direct evidence of a quarrel and was led to establish the bitterness of the relationship, that being relevant to the issues in the case. His Honour cited passages from Wilson[9] which reflected the fact that the High Court would not have held the statements of the deceased wife to be admissible but for the fact that they had direct relevance; otherwise they were inadmissible hearsay. In Frawley the statements included words by the deceased wife to the effect that her husband was a potential threat to her; that he “had a nasty side to him when drinking” and that she was afraid of him. The Crown conceded that the statements made by the deceased were not admissible to prove the truth of what was said, thus her statement that her husband wished to kill her would not have been admitted had its purpose been to establish that he did wish to do so. Nonetheless, Gleeson, C.J. acknowledged[10] that, depending on the issues raised in a case, statements by a victim that she was in fear of the accused could constitute original, not hearsay, evidence of a relevant issue, namely the state of mind of the deceased where that, in turn, was relevant to factual issues in the case. More broadly, and applying Ratten[11] and Walton[12], Gleeson, C.J. held that in certain circumstances evidence might be relevant not only for what it revealed of the state of mind, but also the belief or intention of the deceased person, where those were issues in the case, or relevant to facts in issue. His Honour acknowledged, too, that evidence of a statement which amounted to a statement of opinion or belief might be admissible in some circumstances, not in order to prove the truth of the stated opinion or the reasonableness of the belief, but because the very fact that such an opinion or belief was held, rightly or wrongly, was relevant in the circumstances of the case[13].
[9]At 218-220, citing Barwick, C.J., in Wilson at 337, 339-340.
[10]At 219. See too Ratten v R [1972] AC 378, at 387; Walton v R (1989) 166 C.L.R. 283, at 302-4.
[11][1972] AC 378, at 387.
[12](1989) 166 C.L.R. 283, at 302-4.
[13]At 222.
Thus, whether any statement was admissible required an analysis of the issues in the case and a determination whether the statement constituted original, not hearsay, evidence.
In Frawley, the statements, upon analysis, were held not to have been admissible. In that case, however, the accused admitted that he had stabbed his wife to death but contended that due to the consumption of drugs and alcohol he had been incapable of forming a murderous intention. Gleeson, C.J. held that the fact that the deceased feared the appellant did not tend to prove that he killed her or that he acted towards her with a particular intent[14].
[14]At 223.
By way of contrast, in Wilson v The Queen[15] Barwick C.J. held that the nature of the current relationship between the accused man and the deceased was relevant to the question to be decided by the jury, namely, whether the death was an accident or murder. Thus, evidence of mutual enmity could be used to induce the conclusion that he had killed his wife and that the story of accidental shooting lacked credibility. As Barwick, C.J. held[16], it was relevant and admissible in that case because it assisted the jury in making the choice between the two explanations for the occurrence. Similarly, in Ratten, evidence of a telephone call made by the deceased immediately prior to death was relevant to the issue whether her death was accidental or murder. Likewise, as Sheller, J.A. held in R v Frawley[17], obiter, evidence that the deceased person had expressed fear of the accused might be relevant to the question whether the death was an accident.
[15](1970) 123 C.L.R. 334, at 337
[16]At 339.
[17]At 225.
I return to the identified items of ”relationship” evidence to consider their relevance by reference to the above principles.
As to the evidence of the police raid and the letter to the Commissioner, Mr Toohey did not concede that the events of the raid were not too remote in time, but did not press that argument. His primary submission was that it was highly prejudicial, suggesting that the accused was a man with a believed propensity to act with violence, so much so that police called in the special operations group to deal with him. The letter had no probative value because it was never sent, and its anger was directed not at his father, but at police, for not charging the father; it is incapable of demonstrating enmity, at worst mere annoyance, he submitted. Alternatively, even if all of this evidence was to be said to carry any probative value as to the state of the relationship, then, counsel submitted, its prejudicial effect far outweighed its probative value.
One additional concern about the letter is that it makes reference to the accused receiving treatment for severe depression. That might invite speculation by the jury as to the mental state of the accused and the likelihood that he was a murderer. Mr Toohey submitted that the jury might apply amateur psychiatry and decide that the accused was “mad” and, thus, a murderer.
Ms Williams submitted that the letter provided very powerful evidence as to motive and as to the improbability that the death was suicide, rather than murder. She submitted that the whole of the letter was relevant and admissible, but that if the reference to his treatment was considered to be prejudicial, then the first of the passages referring to his psychiatrist could be excised without the excision being apparent to the jury and without the contents of the letter being thereby distorted. A final paragraph in which he states what his “treating doctor” had said of the danger of his father’s conduct ought remain, Ms Williams submitted, and, if requested, could be subject to a direction not to speculate about the nature of the treatment.
In my opinion, the letter, which is a photo copy only, is relevant and admissible. It has direct relevance as to motive and is relevant to the issues to be determined by the jury. The references to psychiatric treatment pose a difficulty, however. Although the medical records of the accused were seized by police the prosecutor has announced that no attempt will be made to lead any such evidence. References to psychiatric treatment had emerged in various statements by witnesses, including comments made to police by the accused, but it now seems unlikely that any such evidence will emerge in the trial. Whilst the jury would receive a strong direction not to speculate about the likelihood that severe depression is relevant to the likelihood of a person committing murder the excision of the major passage in which that is discussed would remove the risk of such speculation. Thus, I am persuaded that, unless counsel for the defence urges that the entirety of the letter be tendered, the first of the passages should be excised. The later paragraph, which refers to the opinion of the “treating doctor”, does not indicate what the treatment was for. What is asserted by the accused in this paragraph about the danger his father’s reporting to police had created, is significant from the Crown’s point of view, but in my view the introduction of the matter of treatment adds a prejudicial dimension which should be avoided. Thus that paragraph should also be excised. There would then remain three paragraphs on the last page of the letter/note.[18] Whilst it might well be possible to retain those in a way that did not disclose the editing that had occurred, the preferable course would be to omit all of the last page of the three page letter, concluding it at the foot of the second page, closing with the words “dealing with certain members of the public”. I will invite defence counsel to consider whether the defence would prefer that the three paragraphs remain from the third page, rather than the whole page be excised.
[18]The note is not signed, but it is not disputed that it is in the hand of the accused.
Once the letter is to be admitted, there is relevance in establishing, through a witness, that the search by police did take place and, subject to any further submissions, so, too, any evidence of upset at the raid, by the accused, towards his father. There are, however, limits to the scope of such evidence, and I would expect the prosecutor to appropriately confine the evidence.
I turn to the evidence of the events of 21 July 1999. Mr Toohey submitted that there was no firm evidence demonstrating that the accused man was upset by what happened to his brother, and thus the evidence had no probative value. In my view, this evidence is made relevant by the evidence of Niel Jensen that the accused man sided with his brother against his father. That, in my opinion, makes the evidence relevant in showing the state of the relationship between Douglas Jensen and his father, and it is also relevant to the question whether suicide was the more probable cause of death.
As to the third category - the evidence of Mrs Yeates -each of the statements must be separately considered. In my opinion the statement “that Doug had a bad temper and he felt that that would get him into strife at some time” has no probative value and ought not be admitted. The statement that he “seemed uneasy about the boys”, in that form of words, amounts merely to opinion or speculation and would not, in that form, be admissible. Statements by Marius Jensen that he was scared of the boys, and that there had been arguments and unrest in the house would be relevant to issues in the trial and their probative value is not outweighed by any prejudicial effect.
In my opinion, the statement reported by Mrs Yeates that he intended to change the will is also relevant and admissible, although it could not support an inference as to motive, because, as Ms Williams conceded, the Crown had no evidence that the accused knew of the plans concerning the sons’ inheritance. However, the evidence of the intention to alter his will would not be hearsay evidence if it was admitted for the purpose of establishing the intention and state of mind of the deceased man, where those were relevant matters: see R v Hendrie[19], and Subramaniam v Public Prosecutor[20]. Statements made by the deceased man may form part of the circumstances surrounding his death from which an inference as to a relevant matter may be drawn; if so, the evidence of the fact that the statement was made may be admissible as direct evidence, and not as hearsay by virtue of the contents of the statement being used testimonially: see R v Frawley[21]. Thus, if it is not led to prove the truth of the statement that he made but to prove the fact that the statement was made, that is not hearsay. That is the case here, in my opinion.
[19](1985) 37 SASR 581, at 585, per King, C.J.
[20][1956] 1 W.L.R. 965, at 970
[21]At 222, per Gleeson, C.J.
Here, relevant facts were the mental state and intention of the deceased. The evidence of Ms Yeates is relevant as to the state of mind of the deceased, as to whether he was contemplating suicide, at all, and, the statement that he intended to change his will is capable of supporting the conclusion that he had no intention of suiciding and his intention that he would change the will was relevant to a finding that he did not suicide.
The fourth category is the evidence of Stephen Clegg. Once again it was contended that the evidence was not relevant, or that its prejudicial effect outweighed its probative value. Insofar as it is evidence of opinion, i.e. that he was “shit scared”, then the evidence in that form is not admissible. Direct evidence of any statement or of behaviour on the part of the deceased might be, but the evidence before me, in his statement, is not in that form. The evidence about Marius Jensen moving to the caravan, and his reasons for doing so, are relevant to the issues in the trial and the evidence is admissible. The statement that “the boys think I have lived too long” is relevant to the state of mind of the deceased. Whilst such a statement might not be inconsistent with a person deciding to suicide, the Crown would be entitled to place it together with other evidence to support an inference that it was less likely that he was contemplating suicide on account of the attitude of his sons. In my view, the evidence is relevant and its probative value is not outweighed by an prejudicial effect.
Finally, there is the evidence of Niel Jensen that the accused “seemed to be supporting his brother” against his father, In that form, it is opinion evidence and would not be admissible. That is a question of the specificity and form of the evidence rather than its relevance. I see no reason to rule that evidence on those topics be excluded, however. In general terms his evidence concerning the accused is relevant, subject to any rulings as to the form in which he gives the evidence.
Evidence of experiments
Detective Sergeant Barry McIntosh as he then was, a member of the Homicide Squad at the time, conducted a test of the rate of combustion of wood in the slow combustion stove in the kitchen of the farmhouse. The test was conducted in company with Senior Constable Dent who was the first officer to enter the kitchen after the shooting and who had observed a raging fire in the fire place which was generating so much heat that he feared the house might be burnt down. The purpose of the experiment was to assess whether the size and nature of the blaze was inconsistent with the apparent account of the accused that he had heard the shot fired at some time between 6.30pm and 7pm and not later. The accused had arrived at the police station at 8.15pm and returned with police to the scene at 8.26 pm. The police theory was that to have been burning as it was at 8.26 the fire must have been stoked at some time well after the accused claimed the shot had been heard, and also to establish that someone had entered the kitchen after the shooting. The accused denied that he had done so.
For the test McIntosh obtained wood from a wood merchant which was of the same three types as he said he had sampled from the kitchen on 19 February 2000. The wood was red-gum, spotted gum and pine. He then set the fire and filled the fire on separate occasions, each time using one only of the three varieties of wood (although the fires each time did not burn down completely, so some of the previous load would have remained as near-ash). He then timed how long the wood took to burn down, and how much wood was required to obtain a blaze equivalent to that observed by Dent at the scene.
He concluded that a fire of the intensity described by Constable Dent could only be achieved after 25 minutes of continuous loading of the stove, and the fire then burned down within 15 minutes. These times were relied on in support of the Crown case that the fire must have been stoked by someone at a time after the death of the deceased. The fireplace was said to contain ashes of clothing consistent with jeans of a type known to be worn by the accused.
In R v Ireland[22] the Court of Criminal Appeal in South Australia held:
"In practice, evidence of experiments, more often than not, is offered by experts and its purpose is frequently to confirm the opinions of those experts arrived at by an examination of real evidence that has been found and collected at the scene of the trial. But, of course, the use of experiments for the purpose of enlightening a jury is not limited to those so conducted. It seems to us that, given conditions for the experiment sufficiently similar to the conditions in which the act or event under consideration must have been done or occurred, an experiment carefully performed and conscientiously recorded and reported may frequently be of great assistance to the jury in its deliberations. Some experiments can be carried out only experts, occasionally by experts with high qualifications and advanced skills, but others can be carried out by ordinary laymen by the application of common sense and the employment of such tools, materials and devices that are readily at hand. As with opinion evidence, much will depend on the degree of knowledge and skill required, and the degree of precision claimed for the results of the experiment. If a layman witness is seen by a trial judge to have blundered into arcane fields of science or learning with inadequate training, or to be claiming that his experiment produced results whose accuracy is plainly exaggerated, he will, no doubt, either recommend to the jury that they disregard the evidence or, in his discretion, exclude it. But there is a wide range of experiments whose purposes and execution are so easy to follow and to assess, and whose results are so plainly useful, that a jury can legitimately make reference to them to assist in ascertaining the truth, even though they are conscious that their results are only approximate."
[22][1971] SASR 6, at 14-15, per Bray, C.J., Hogarth and Wells, JJ..
Their Honours added:
"We are disposed to take, as correctly representing the principles of the law of evidence applicable in this State to experiments of the kind deposed to, a passage from the judgment of Edwards J in Shepherd v State ((1931) 51 Okl. Cr. 209; 300 Pac. 421), which runs:-
'The general rule as to the admissibility of the result of experiments is, if the evidence would tend to enlighten the jury and to enable them to more intelligently consider the issues presented and arrive at the truth, it is admissible. The experiment should be under circumstances similar to those prevailing at the time of the occurrence involved in the controversy. They need not be identical, but a reasonable or substantial similarity is sufficient. Several Courts have held that the lack of identity of circumstances affects only the weight and not the competency of the evidence provided there is a degree of similarity which will assist the jury.'
The results of the application of the principle will vary according to the special circumstances of such particular case, but we entertain no doubt as to the validity of the principle."
That decision was followed by the Court of Criminal Appeal in the ACT in Thompson v R[23]. In a helpful analysis of English authority Jeffries J in R v Baker[24] drew a distinction between, first, evidence of reconstruction, which was an attempt to re-establish a previous event which was in issue in the trial, secondly, a demonstration, which was an attempt to show or to clearly point out something that was in issue in the trial, and which both lay and expert witnesses frequently performed to illustrate some point they were making in their evidence as to how an event or action which they were describing had occurred, and, finally, evidence by way of experiment, being something done to test a theory. As to the last, Jeffries, J. held, at 638-9:
"The Court must ensure that an experiment is not likely to mislead the members of the jury who might attach exaggerated significance to the test. That seems to be one of the main submissions made by Mr Hampton in support of his argument to exclude the evidence. An important consideration for the Court in making an assessment is to gauge the degree of similarity between experimental evidence and the conditions in question, and so long as there are valid points of similarity the evidence is admissible and the differences go to weight to be attached to the evidence. Experimental evidence must be relevant and probative and those criteria are judged against similarity of the conditions about the transactions in question. Of importance is the foundational showing of substantial similarity between tests conducted and actual conditions in question."
[23](1986) 13 FCR 165.
[24][1989] 3 NZLR 635
I agree with Jeffries J. that one important consideration would be the fact that the experiment was of a kind that could be tested by cross-examination in the courtroom before a jury. I agree, too, with the following observations:
"If evidence is excluded which the Court thinks is relevant and of such a kind a jury would reasonably expect it to be addressed then that could reduce the integrity of the adversarial trial. The jury will be entitled to possession of the rifle, it being an exhibit, and may even seek to conduct an experiment themselves during the deliberative stage perhaps without the safeguards of the Crown experiment. Moreover, if it is admitted both counsel would have the opportunity to make submissions to the jury and the trial Judge would be able to assist them with appropriate directions. The evidence is, therefore, ruled inadmissible."[25]
[25]At 639.
Mr Toohey submitted that the test lacked scientific credibility. The evidence did not replicate the facts which pertained at the date of death. The wood which was used for the tests was not obtained until weeks after the death. It is not known with any certainty whether the wood was the same type, was as dry as or was used in combinations that approximated the wood with which the fire had been fed on 2 February. The weather conditions for the test and the 2 February 2000 were not replicated. The evidence amounted to an attempt at reconstruction not an experiment, and was not a test with any probative value, but merely amounted to speculation.
Mr McIntosh accepted that after the death the stove had been modified. He noticed two changes, one of which was to remove a gap in the stove and another was to affix a steel plate to the side of the stove. He was unaware of any other changes and had not fully inspected the stove before he conducted the test. The accused gave evidence on voir dire that he had made very substantial alterations to the stove, which had been in a dilapidated condition, with many cracks at the time of the death. He had also modified the flue. It is unnecessary to elaborate on the evidence. It is sufficient to say that the stove had become larger, took more wood, had significant modifications to its air intake and many other changes. The changes were confirmed upon inspection of the DVD footage taken for the tests.
In my opinion there was not reasonable or substantial similarity between the conditions of the stove at the time of the test and the conditions at the time of death to give the test relevance and reliability. I will exclude this evidence in the exercise of my discretion.
I add this, that the test itself had a number of other unsatisfactory features. In the first place, the DVD footage is introduced by McIntosh announcing that it was a test concerning the “murder” of Marius Jensen. The DVD was interrupted many times, which was understandable, since the fire sometimes burned for half an hour without anything happening of note. Each time it stopped McIntosh provided a commentary and announced the time. The DVD had no counter and no transcript accompanied it. The task of the jury and of counsel to question witnesses about the tape would therefore have been rendered unnecessarily slow and cumbersome. At various times, McIntosh conducted a discussion with Dent, in which effectively they discussed Dent’s evidence of what he saw. Had the effect merely been to have Dent say when the fire approximated what he saw that might have been satisfactory but at times the discussion was unduly wide-ranging. I should add that I do not consider that McIntosh was being devious in what he did. Indeed, the fact that he recorded the conversations with Dent, and so much of the experiment as he did, probably reflects his efforts to make the conduct of the test entirely transparent. There was a logic, and value in the experiment he conducted, but in its execution too many variables entered the picture.
All of the additional factors, mentioned above, add to my confidence that the DVD and other evidence of the test should be excluded. Evidence of the extent of the fire upon the arrival of the police and of the contents of the fire, however, remain relevant and admissible.
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