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R v Jensen

R v Jensen

Case [2009] VSCA 266 24 November 2009

Criminal Liability

Appeal

Miscarriage of Justice

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 683 of 2007

THE QUEEN
	v
DOUGLAS VICTOR JENSEN

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JUDGES	NETTLE and WEINBERG JJA and HOLLINGWORTH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 October 2009
DATE OF JUDGMENT	24 November 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 266
JUDGMENT APPEALED FROM	[2007] VSC 199, Osborn J

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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 (1984) 154 CLR 563 considered – Appeal allowed – No error by judge, but Crown’s refusal to call witness productive of miscarriage of justice.

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Appearances:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC with Mr B L Sonnet	Kathryn Thornton, Solicitor for Public Prosecutions
For the Applicant	In person

NETTLE JA
WEINBERG JA
HOLLINGWORTH AJA:

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.

The evidence at trial

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.

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.

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…

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 Jensen

Details

AGLC: R v Jensen [2009] VSCA 266
Case: [2009] VSCA 266
Decision Date: 24 November 2009

CaseChat Overview and Summary

In the case of R v Jensen, the appellant, Jensen, was convicted of murder by a jury in the Supreme Court of Victoria. The prosecution presented a circumstantial case against Jensen, relying heavily on the absence of certain witnesses who were expected to testify in support of the prosecution's case. A key figure in the prosecution's case was a witness, whose testimony was deemed crucial but who was not called to give evidence by the Crown. The defence argued that the failure to call this witness amounted to a miscarriage of justice and sought a direction from the judge to compel the Crown to call the witness. The judge declined the defence's application, finding no error in the Crown's decision not to call the witness.

The primary legal issues in this appeal were whether the Crown's decision not to call a material witness was justified, whether the judge erred in declining the application to direct the Crown to call the witness, and whether the Crown's failure to call the witness resulted in a miscarriage of justice. The appeal centred on the application of the principles from R v Apostilides, which established that a refusal to call a material witness could lead to a miscarriage of justice if it was unreasonable and unjust to allow the trial to proceed without the witness's testimony. The court had to determine whether the Crown's decision not to call the witness was reasonable and whether the failure to call the witness resulted in a miscarriage of justice.

The court found that while the judge did not err in declining the application to direct the Crown to call the witness, the Crown's failure to call the witness was indeed productive of a miscarriage of justice. The witness was deemed material, and the Crown's decision not to call the witness was unreasonable. The court held that the principles in R v Apostilides applied, and the Crown's failure to call the witness resulted in a miscarriage of justice, leading to the appeal being allowed. The conviction was quashed, and a new trial was ordered.

The final orders of the court included the quashing of Jensen's conviction and the ordering of a new trial. The court emphasised the importance of ensuring that all material witnesses are called in a criminal trial to maintain the integrity of the judicial process and to prevent miscarriages of justice. The decision highlighted the delicate balance between the Crown's discretion in calling witnesses and the rights of the accused to a fair trial.

Orders