R v Japaljarri - [2002] VSCA 154

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 299 of 2000

THE QUEEN

JAPALJARRI

(Formerly known as BRENT ANDREW HOCKING)

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JUDGES:	BATT and EAMES, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2002
DATE OF JUDGMENT:	1 October 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 154	2^nd Revision – 27 November 2002

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

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson Solicitor for Public Prosecutions
The Applicant appeared in person.

BATT, J.A.:

I have had the considerable benefit of reading the reasons for judgment of Eames, J.A. I agree with his Honour’s reasons and conclusion that the application should be dismissed.

EAMES, J.A.:

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

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

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

Phillip Hocking, was the beneficiary under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Japaljarri

Details

AGLC: R v Japaljarri [2002] VSCA 154
Case: [2002] VSCA 154
Decision Date: 1 October 2002

CaseChat Overview and Summary

The case of R v Japaljarri involved the defendant, Japaljarri, who was charged with murder, arson, and burglary. The facts of the case involved Japaljarri being present at the scene of a crime where a victim was severely beaten and later died. Japaljarri appealed his convictions and sentence, raising several grounds of appeal, including the conduct of counsel, the sufficiency of cross-examination, and the availability of defences of duress and necessity. The appeal was heard by the High Court of Australia.

The primary legal issues before the court were whether the conduct of counsel and the judge prevented Japaljarri from giving evidence, whether the prosecutor was obliged to call further witnesses and ask additional questions, whether the cross-examination of witnesses by defence counsel was sufficient, and whether the defences of duress and necessity were available. The court also considered whether the convictions were unsafe and unsatisfactory and against the weight of the evidence.

In its decision, the court held that the conduct of counsel and the judge did not prevent Japaljarri from giving evidence. The court found that the prosecutor was not obliged to call further witnesses or ask additional questions and that the cross-examination of witnesses by defence counsel was sufficient. The court also held that the defences of duress and necessity were not available in this case. In relation to causation, the court found that there was no evidence to suggest that further blows were struck to the victim after Japaljarri's departure from the scene. The court concluded that Japaljarri's convictions were safe and satisfactory and not against the weight of the evidence.

The High Court of Australia dismissed Japaljarri's appeal against his convictions and sentence. The court found that there was no error in the conduct of the trial or in the convictions themselves. Japaljarri's appeal was unsuccessful, and his convictions and sentence were upheld.

Orders