R v Jensen
[2011] VSC 80
•1 February 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. S CR 2004 1457
| THE QUEEN |
| v |
| DOUGLAS JENSEN |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 February 2011 | |
DATE OF RULING: | 1 February 2011 | |
CASE MAY BE CITED AS: | R v Jensen | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 80 | |
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CRIMINAL LAW – Murder – Evidence – Issue whether deceased died as result of suicide – Admissibility of book found on premises occupied by deceased and accused – Whether relevant – Prejudicial effect.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Kissane | Solicitor to Office of Public Prosecutions |
| For the Accused | Mr C Dane QC |
HIS HONOUR:
In this case, the accused is charged with the murder of his late father, Marius Jensen of Tarrington on 2 February 2000.
On that day, Marius Jensen, late in the afternoon, received a shotgun wound to his head from which he was killed. One issue in the trial will be whether the accused fired the shot which caused the death of Marius Jensen or, alternatively, whether Marius Jensen died by his own hand.
In the forthcoming trial, which is to be a re-trial, the Crown proposes to adduce into evidence a book which was found on the property at which the accused and Marius Jensen resided entitled “Forensic Clues to Murder”.
That book was first identified by a police officer, Detective Senior Constable Olney, on 4 February 2000, when she searched the premises. She found the book in one of three cartons which was in a locked shipping container on the property.
The book was subsequently seized in August 2001 by police. The accused provided to the police the key with which to open the rental container.
The book which was published in 1991, when opened, opens at p 145, as there is a break in the spine of the paperback book at that page. At pages 145 to 146, the author describes a case which occurred in 1926 when a woman received a fatal shotgun wound to her head in the kitchen of her house. Originally it was believed that she committed suicide, but later forensic evidence established that she had been killed by the hand of her 18 year old son. There was evidence in that case, apparently, that the son had been forging the mother’s cheques and thus had a motive to murder his mother.
Mr Dane of Queen’s Counsel, who appears for the accused in this case, has submitted to me that the book and, in particular, those pages, are irrelevant, and further that any relevance would be slight and that that relevance would be outweighed by the potential prejudicial effect of the admission of that material before the jury.
Mr Kissane, who appears to prosecute the case, has argued that the book and, in particular, pp 145 to 146, are relevant. In this case, as he rightly identifies, the key issue is whether the death of Mr Jensen occurred at the hand of the accused or as an act of suicide by himself. Mr Kissane submits that the book is relevant because it would have indicated to the accused that it is possible to make a shooting look like a suicide, even if it is a murder, provided that you carry out the appropriate steps to ensure that it looks as if the deceased died by his or her own hand.
He further submitted that, in particular, what the accused would have learnt from the book is that it is important that the barrel of the gun be held close to the head of the deceased in order that there be burn marks on the skin of the deceased.
In my view, if there is any relevance in the admission of this material before the jury, that relevance would be quite tenuous. There is, indeed, no direct evidence that the accused ever read the book. The highest the Crown case can proceed is that it was one of a large number of books found in a shipping container on the property.
Further, as I have already noted, the book was published in 1991 and there is no evidence that if the accused had read the book, when he did so.
Whilst there may be some significance in the fact that the book opens readily at p 145 because of the break in the spine of it, I do note that the book contains 298 pages and it is not unusual for rather cheap paperbacks to break in the middle of the book when they are opened.
Thus, there is little evidence available that the accused read the book. The highest the Crown case can go is that it was on the property occupied by he and his father and, until some months before the death of the father, his brother Colin, and that the accused had access to it.
Secondly, it would seem to me that the purpose of which the book is sought to be admitted could not be particularly advanced by the admission of the book. I observe that people do read many books in their lives and it does appear that there were a number of books on the property. They do so without copying what occurred in the book and without retaining the fine details of what they had read.
There is certainly no suggestion in this case that the accused copied in precise and intimate detail the killing which occurred in the book. Rather the suggestion, by Mr Kissane, is that he learned from the error made by Donald Merritt back in 1926 when he failed to hold the gun close enough to the head of his mother. However, the Crown has evidence in this case that the accused is thoroughly familiar with the use of firearms and had an interest in them, and it would not be necessary for such a person to read a book such as this one in order to learn that basic fact.
Secondly, I do not consider the book would advance the proposition, in any material degree, that it is possible to make a murder look like a suicide. At the relevant time it would appear there were two people on the premises. The prime alternatives are either that the accused killed his father or that it was suicide. It would not be necessary for a person of average intelligence to read a book to understand that they are the two alternatives which are available in such a case.
Thus, in my view, the book adds little to the Crown case and is at best marginally relevant. On the other hand, I do accept Mr Dane’s submission that, if it were admitted, it would have an unfairly prejudicial effect on the case against the accused. Firstly, the jury may infer from it that the accused took a morbid interest in murder and, in particular, he took a morbid interest in cases of murder which had been made to look like suicide.
The book, if it was provided to the jury may put in the minds of the jury the suggestion that it is common place for such cases to occur as are recorded in literature such as this book. Whilst it may be possible to meet such prejudice with an appropriate direction, the evidence is at the margins of the Crown case and, in my view, it would be undesirable to be required to give such a direction, particularly as I am not confident that it would divert the jury from the prejudicial effect of it.
I should further add that I have not had the opportunity to read the book in toto. It would seem that the book is being admitted for the purposes of the contents on pp 145 to 146. However, there are other murders that are referred to in close proximity to those passages and there is also the risk of misuse by the jury of the book were it admitted.
I also consider that there is force in Mr Dane’s submission that while the book could be tendered quite simply and relied on by the Crown, it would take some time for the defence to properly rebut it by argument which would, in my view, distract the jury from the major issues which appear to be at large in the case.
For those reasons I am not persuaded the book has other than tenuous relevance, and I am persuaded that relevance is well outweighed by potential prejudicial effect of it. I shall thus rule that it not be admitted into evidence.
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