DPP v Jensen

The case of DPP v Jensen involved the Director of Public Prosecutions as the prosecutor and Jensen as the defendant. The dispute centred around the admissibility of evidence and the prosecution's decision not to call Jensen's brother as a witness, despite his name appearing on the presentment. The matter was heard in the relevant court where the defence sought to address the prosecution's decision, arguing that it should be highlighted to the jury and potentially leading to the trial being stayed until the Crown indicated a willingness to call the brother as a witness. Alternatively, the defence requested that the judge call the brother as a witness himself.

The legal issues before the court involved whether the prosecution's decision not to call the brother as a witness could be commented upon by the defence and if there were grounds for the trial to be stayed or for the judge to intervene and call the witness. The court needed to determine the extent to which the prosecution's reasons for not calling a witness could be scrutinised and the implications of the defence's intention to attack the credibility of the brother without calling him as a witness of truth.

The court found that the prosecution's decision not to call the brother as a witness was a matter of prosecutorial discretion, grounded in their opinion that he was not a truthful or reliable witness. The court held that there was no basis for the defence to comment on the prosecution's decision, as it did not involve an adverse comment on the defendant's character. Furthermore, the court rejected the notion of staying the trial or calling the witness itself, as the defence did not intend to call the brother as a witness of truth but rather to attack his credibility. The decision in The Queen v Apostilides was referenced, reinforcing that the prosecution's decision not to call a witness was not subject to judicial intervention.

Ultimately, the court refused the defence's application to comment on the prosecution's decision, to stay the trial, or for the judge to call the brother as a witness. The ruling affirmed the prosecutorial discretion in deciding which witnesses to call and upheld the principle that the defence cannot indirectly comment on the prosecution's decision through the witness in question.