R v Leonboyer [2001] VSCA 149

R v Leonboyer [2001] VSCA 149 - VSCA 2001 case summary — Zoe

[32]

The applicant's mother showed a police officer a knife which she removed from a plastic bag containing rubbish that had been hanging on the fridge door. The knife was broken and the handle damaged. As viewed by the jury at the trial, when it became an exhibit, the blade could be rotated 360 degrees. A police officer noted a quantity of hair attached to the blade and hilt. The police gave evidence at the trial of blood smears in the bedroom but there was no evidence of knife damage outside the bed area. A number of blood stains on the doona and its cover and a bed sheet were found to consist primarily of the blood of the deceased with some blood of the applicant. Knife damage in the form of stab-like cuts were found in the deceased's clothing and on the bed sheet. About midnight, the applicant was conveyed by ambulance to St Vincent's Hospital whence the deceased had already been taken. The applicant did not speak in the ambulance. After arrival at the hospital the applicant was interviewed at about 12 minutes past midnight by a Detective Senior Constable Casey while on a bed. Casey made notes of their conversation. The applicant's statements to this officer were the first of a number made by him after the events in the bedroom. The witness read his notes to the jury without objection and their accuracy was not challenged at the trial. According to the witness, the applicant said, after initially not responding, that his name was Michael Leonboyer. He then correctly gave Erik as his middle name. He said he lived at Flat 166, 20 Elgin Street Carlton. Casey then said, "Do you know what's going on, Michael?" The applicant replied, "Not really." Casey said, "At the moment you're in custody, okay. Do you understand that?" The applicant said, "Yes." The applicant was then cautioned and told he would get an opportunity to make phone calls. He replied "If I've done something wrong, I don't want a phone call, I'd had everything, my girlfriend was going to leave me. I've got a law degree, commerce degree, own apartment, car, everything. She was going to leave me." He then added, "I've got nothing without that girl. I've been with her three years. So many trips to Queensland that I paid for. I wanted to marry her. Since I was nine years old I've known what I wanted. I wanted to be a lawyer. I just want to die now. There is nothing to live for. I feel like nothingness." He then asked the detective, "Did I hurt her badly?" The detective said, "She's not very good, but they're working on her now." The applicant said, "She's from Colombia. I taught her how to speak English. She's only been here three years, you know. What did I do?" Casey said, "I'm not sure Michael, I wasn't there, I can't tell you what you did. Do you remember anything at all?" The applicant said, "I just remember fainting. My legs felt like water." He later added, "I don't really speak to her family, but they've just moved to Maribyrnong, I don't know the address. Her mother's name is Gaviria Hermelinda. They've only been there two weeks. Her mother broke up with her cousins. I just wanted to take her away from all that shit. That's incest, you know. She used to love me so much, I was everything to her. Her cousins wanted to get with her. Her first cousin married her sister. They hated my guts." After pointing out where he believed the deceased's mother lived in a directory, the applicant said, at about half past one, "I'm starting to feel human again. Is there anywhere I can urinate?" Shortly thereafter a Dr Nido attended on the applicant.

[34]

Casey took notes of a conversation between Dr Nido and the applicant. The doctor said, "Hi Michael, I'm Dr Nido, can you tell me what happened?" The applicant replied, "We went to real estate agent, came home, everything was okay. My mother was talking to me, my legs went watery, the police came. Everything was going to be fine." The doctor said, "You were at home, were you, with your parents?" The applicant replied, "Yeah." The doctor said, "When was this?" The applicant replied, "About ten." The doctor said, "Can you remember what happened then?" The applicant replied, "Everything was a blur, I told her I loved her, she kept saying things to me, I can't remember. My uncle was talking to me there was a knock at the door, it was the police." The doctor said, "Have you been well in the past?" The applicant replied, "Maybe medically, but not psychologically. My father was - they told me he was in a psych ward." The doctor said, "How long do you think you've had problems?" The applicant said, "Since I was born. It was just inside me." The doctor said, "Have you had any unusual thoughts?" The applicant said, "I don't know." The doctor said, "Have you been treated for psychiatric illness before?" The applicant said, "My brother said yeah. My father tried to assault me with a hammer." The doctor said, "Have you every seen a psychologist before?" The applicant said, "I don't think so." The doctor said, "Have you been drinking?" The applicant said, "No." The doctor said, "Have you had any drugs or unusual substances before?" The applicant said, "No." and added, "Is she going to be all right?" The doctor replied, "I don't know. I don't know." The applicant then told the doctor that he did not know what had cut his hands (he had earlier said this to the police at his home). A little after 2.00 a.m. the applicant asked, "Is she all right now?" Casey replied, "We don't know. She's still upstairs." The doctor gave evidence that she conducted a mental state examination on the applicant and concluded that his form of thought was normal and that he was able to think in an appropriate way and respond thus to questions. His speech appeared normal. His wounds were sutured. She put a question mark as to whether he had insight on that night.

[39]

The applicant went on to say that his next memory was his mother giving him a hug in the bedroom. His mother looked "kind of fuzzy." Nothing in the room then alarmed him. He didn't see any blood. He did remember the police asking him questions and the ambulance downstairs. He said, "I didn't want to know anything. It was like, I was in like my own trance." He heard voices and "everything was just, you know, like crazy." He said he had been experiencing a lot of things lately and mentioned that his father was going to hit him with a hammer and that his father had told his aunty that he was going to get a machine gun from the United States to kill the family. He described his father as a Nazi. He said there had been a lot of things going on in his life adding that it was "probably too much for me". He described his studies and that the deceased was going to live with him. Her relationship with his family was very good but this was not so as to his relationship with her family. He spoke with disapproval of a relationship in the deceased's family between first cousins. He denied the deceased had ever asked to call their relationship off. He said that she wanted him to marry her and that that would occur after he got a job and after they moved into the flat. Probably within the year. He was asked if he owned a knife and he replied, "Yeah. I've already discussed that. We bought some knives in Lakes Entrance for the purpose of defending ourselves if anything ever happens to us." He described the knives as normal fishing knives with a fold out blade. He could not remember seeing a knife on the previous night in his bedroom. He had last seen the deceased's knife some two weeks earlier when she took it out of her school bag. Told that his mother had allegedly found a knife on his bed that night he said that he did not know how that knife came to be there. He said he could not recall how he received cuts to his hand. He was asked if he had any recollection as to how the deceased had received the number of injuries consistent with knife wounds, but he did not answer referring to advice given him by his lawyer. He was told a knife had been located at the flat that night and he said he did not know where the other one was.

[111]

"You are not obliged, ladies and gentlemen, to accept all that a witness has said, on the one hand, or to reject it all, on the other hand. You are perfectly entitled according to your own good judgment to accept some of what a witness has said and to reject another part of what that witness has said. You have also heard a substantial body of evidence of opinions from particularly the psychiatrists and the psychologist, and also the pathologist, Dr Dodd. Normally a witness is not entitled to express his or her opinion and is confined to describing what that witness saw or heard or did. But the law makes an exception about things beyond the knowledge of ordinary persons, such as yourself or myself; for example, in the area of psychiatry or of pathology. That is what the law calls specialist evidence. To give specialist evidence a person must first give qualifications and experience which is why you heard those specialist witnesses at the start of their evidence being asked their qualifications and their experience in their respective fields, pathology, psychology, psychiatry. A specialist witness, however, is not a judge of the facts of the case. Only you 12 good people are the judges of the facts of this case. In assessing the evidence of specialist witnesses you ask yourselves the same questions that you ask yourselves about ordinary witnesses: Is the witness truthful? Is the witness accurate and reliable? But with specialist witnesses you also ask yourselves further questions. You ask yourselves: How well qualified is the witness? How relevantly qualified is the witness? How experienced is the witness? How relevantly experienced is the witness? Upon what facts is the witness expressing the opinion? Because an opinion is only as good as the facts upon which it is based. And finally: Is the specialist fair and objective as you would expect a specialist to be or not fair and objective? Consider the opinions of the specialists fully and carefully, giving due weight to their expertise. But this is not a trial by psychiatrist. This is a trial by jury. You are the judges of this case and the sole judges of this case. In particular, you decide whether you accept the evidence of the accused, that he has a blank about what he did. That is for you to decide. No one else. You 12. Bearing in mind the onus of proof which I shall define for you in a moment."

[174]

In my view ground 2(i) is made out and, error being shown, it is necessary for this Court to resentence the applicant. In the course of sentencing reasons, his Honour set out a number of matters which should be taken in the applicant's favour on the question of sentence. The crime was plainly not premeditated, and was committed while the applicant was at least in a state of high emotion, not as a consequence of calculation. The evidence established that the applicant was indeed rigid, possessive, and controlling, with an idealised view of his relationship with the deceased and their future. His Honour found the applicant to have significant prospects for reformation. He had no prior convictions. The applicant had had an afflicted upbringing by reason of his father's violence and abuse over many years. He had had a traumatic episode with his father only three weeks before the death of the deceased. He had a long and commendable history of study, aiming to make a worthwhile contribution to society, with all the self-denial and discipline necessary to that process. The applicant had also had the burden of a lengthy period of uncertainty and delay, including two trials, which was plainly oppressive. His Honour also found the applicant to be remorseful, although finding that this was not full remorse on the basis I have mentioned. The judge noted the submission that the applicant's sentence should be significantly reduced because of the evidence that his fatal actions were committed in a state of significant dissociation, even if, on the jury's verdict, short of automatism. As to this submission his Honour said "I do not agree. You knew what you were doing when you did it." His Honour then said that he took into account in reduction of sentence the matters to which I have just referred. His Honour indicated that the pre-eminent principles in sentencing were general deterrence and reformation, and that punishment was also relevant, special deterrence being of least relevance.

[182]

"A homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure. ... The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused's immaturity, the ordinary person may be taken to be of the accused's age. However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions. ... ... the question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it."

At a glance

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Before

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Judgment (256 paragraphs)

Parties