Leonboyer v The Queen

[2005] HCATrans 306

[2005] HCATrans 306

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M213 of 2004

B e t w e e n -

MICHAEL ERIK GONZALEZ LEONBOYER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 APRIL 2005, AT 10.15 AM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by the applicant)

MS K.E. JUDD:   If the Court pleases, I appear on behalf of the respondent.  (instructed by the Director of Public Prosecutions (Victoria))

McHUGH J:   Yes, Mr Grace.

MR GRACE:   As your Honours would be aware, an extension of time for the making of the application for special leave is sought.

McHUGH J:   Yes.  Well, you are three years, three months out of time, I think, but put your submissions and we can deal with that.

MR GRACE:   Thank you, your Honours.  The application raises two issues, firstly, automatism, and, secondly, provocation.  The issue of automatism was left to the jury; the issue of provocation was refused to be left to the jury by the trial judge.  The history of the matter reveals that there were two trials in this matter.  The first trial the jury was hung, it could not agree on a verdict, and the issue of provocation was left in both trials.  Both counsel for the accused and counsel for the Crown consented and agreed that the issue of provocation should be left to the jury.  In the first trial, the judge agreed and, in the second trial, a different trial judge disagreed. 

We submit that the issue of provocation ought to have been left.  There was material present that was peculiarly a jury question and it was incumbent upon the learned trial judge in the circumstances of this case to leave that issue to the jury.  Can I take your Honours firstly to the ruling of the learned trial judge at application book page 325.  There you will see that at paragraph 13 his Honour said:

Plainly there is sufficient material to go to the jury on the subjective element of provocation.  The question is whether there is sufficient to go to a jury on the objective criterion, that is, whether the words or acts were capable of provoking an ordinary person in the way defined by the law.

And then a few lines further down:

The gravity of the conduct, including words, said to amount to provocation is to be assessed by the relevant long-term characteristics of the accused, including in this case the characteristics which I have defined.

And his Honour refers to Masciantonio there.  His Honour then goes on to discuss a number of the decided cases on the issue and indicated the trend to reach the conclusion that words alone were sufficient in an instant case to leave the matter of provocation to the jury.  At paragraph 18 on application book page 327, his Honour said:

However, the door is not fully closed to words alone being sufficient in appropriate circumstances to constitute provocation. 

Then his Honour referred to a number of other cases in which that had been the case.  At paragraph 22 his Honour came to the conclusion that provocation ought not to be left in the circumstances of this case, by saying:

To allow provocation to be left with the jury in the critically limited circumstances of this case would be to significantly extend the law of provocation.  There is no authority, principle or fact which would warrant such a course.  Such a course would significantly alter the proper balance between human imperfection and the protection of human life.

We live in a civilised society ruled by law.  Provocation is not open to be left to the jury in the limited circumstances of this case.

Well, we say that is in error and it is submitted that ‑ ‑ ‑

HAYNE J:   What is the error?

MR GRACE:   The error is that his Honour intruded onto the issue of morality and subjective circumstances, rather than leave this issue as to whether an ordinary man in the position of the accused would be sufficiently provoked by the words. 

Your Honours, I apologise for this.  There was a late delivery of an unreported judgment of the Court of Appeal of Victoria in the matter of Conway, which was delivered on 7 October 2004, which I have provided to the Court this morning.  If I could refer to that briefly:  Conway (2004) VSCA 181. Conway was a words alone case.  At page 3 of the report, which is a very short judgment, your Honours will see, in the quoted paragraph at the top of the page, the words were:

He said to her that he wanted to kill himself; he took out the knife, and tried to stab himself, but did not succeed; she laughed in his face; she said to him: ‘If you want to kill yourself, what do I care?’; he then stabbed her many times.

The trial judge refused to leave the matter of provocation to the jury in those circumstances.  At page 6 of the report that refusal was described by Justice Eames, on the third line of the page in paragraph 14, as usurping the role of the jury as the ultimate tribunal of fact.  And then at paragraph 15, the last sentence:

In deciding the question whether provocation should be left to the jury the trial judge is applying a legal test, not passing on the morality of the conduct, as perceived by the judge on one or other view of the evidence.

And at paragraph 16, the last sentence:

Denunciation of the conduct of an accused, in moral terms, might have relevance to sentencing, but it has no relevance to the determination of the question whether a trial judge should leave the issue of provocation to the jury.

Now, in the judgement of the Court of Appeal Justice Charles, at paragraph 148 at page 542 of the application book, said:

I do not approach the question of provocation on the basis of any principle that “mere words” can never amount to provocation –

but nevertheless upheld the trial judge’s decision in not leaving the matter to the jury.  In order to put Justice Charles’ conclusion into proper context, could I take your Honours briefly to Masciantonio (1995) 183 CLR 58, a decision of this Court. At page 71, your Honour Justice McHugh had this to say ‑ ‑ ‑

McHUGH J:   Yes, but I dissented.

MR GRACE:   Yes, you did, but, in relation to this particular issue that I am about to refer to, your Honour – merely perhaps obiter, but nevertheless said in what your Honour’s view was the current reflection of the law:

In determining the extent to which the conduct of the deceased would have provoked an ordinary person, the jury is entitled to consider all “the attributes or characteristics” of the accused and “the totality of the deceased’s conduct”.  The accused’s age, sex, ethnicity, personal characteristics and physical features are only some of the matters that the jury can consider in determining the nature, extent and gravity of the provocative conduct of the deceased.  Because the doctrine of provocation is the product of “the mercy of the law [interposing] in pity to human frailty”, it is natural that the law should regard as relevant any circumstance that throws light on the effect of the deceased’s conduct on the accused.  Such a circumstance may arise from the personal history of the accused or his or her relationship with the deceased or otherwise.

What, it is submitted, pervades the judgment of Justice Charles on this issue and also the learned trial judge in his refusal to leave the matter was treating the words alone, in effect, as being in isolation to all those other characteristics that your Honour Justice McHugh mentioned in that short extract from Masciantonio. 

In Green (1997) 191 CLR 335, a subsequent decision of this Court, the appeal was allowed on the basis of the trial judge’s failure to direct to the jury “to have regard to the accused’s family circumstances in considering his actual reaction or the reaction of an “ordinary person in the position of the accused”. Your Honour Justice McHugh, at page 369 in that judgment, referred to – halfway down the page:

The fact that an accused is especially sensitive to the conduct constituting the provocation, or that he or she takes the conduct as being aimed at a particular sensitivity when in fact it is not, will not preclude a finding of provocation, nor prevent it from being attributed to the hypothetical ordinary person.

These were all matters, I would submit, which were strongly within the province of the jury and to take this matter away from the jury’s consideration gave rise, in the circumstances of this case, we would submit, to a substantial miscarriage of justice.  On any objective ‑ ‑ ‑

HAYNE J:   This is a point which is a well‑ploughed field and yet, three years and some months later, the application is made to agitate it.  Does not time intrude at some point?

McHUGH J:   Particularly since in this case exhibits have been destroyed, including the knife that was the murder weapon or the death‑causing weapon.

MR GRACE:   Well, your Honours have seen the no doubt ‑ ‑ ‑

McHUGH J:   Witnesses are overseas, other witnesses may be difficult to relocate, and you are asking for a new trial.

MR GRACE:   Yes.  Well, the prejudice, it is submitted, can be cured. 

McHUGH J:   How?

MR GRACE:   The method of curing that prejudice is set out in the affidavit of the applicant where, by consent and by facilitation of the proofs, whether by reading into evidence the evidence that was given in the first trial or reading by consent admissions of fact, any prejudice that the Crown would otherwise suffer can be cured.  And that is all set out in a little detail in that affidavit which has been added to the application book.

We would say that that issue of prejudice is not a burden that could not be overcome in the circumstances of this case.  After all, there was really no dispute at the trial as to what had happened.  This is not a case where there are disputed facts or allegations concerning the method of the actual killing.  This was all a matter not in dispute.  The issues that gave rise ‑ ‑ ‑

HAYNE J:   If you go back for retrial, it is retrial on all issues, including this automatism issue.

MR GRACE:   Yes.

HAYNE J:   Is not the knife critical to that?

MR GRACE:   Well, the knife ‑ ‑ ‑

HAYNE J:   The knife had to be opened, did it not?

MR GRACE:   Well, there was no conclusive evidence as to whether the knife was closed or open at the time, but assuming ‑ ‑ ‑

HAYNE J:   The knife was of a type that, if closed, would require opening?

MR GRACE:   Yes, it was.  And, yes, certainly, your Honour, there would have to be a retrial on that issue also.  But the issue of the knife is not a matter that cannot be cured by consent.  A similar knife or an identical knife could be obtained and produced to the jury.  These ought not to be matters that should be considered as standing in the way of a retrial, because in this case, on any objective test, there was sufficient material to be left to the jury, and this is set out in detail at paragraphs 25 to 34 of the applicant’s submissions, and I will not rehearse those.

If I could move to the issue of automatism, it is submitted that Justice Callaway was right when, at paragraph 153 at application book page 543, he said this:

I do not understand automatism to be limited to cases where the accused, as it were, blindly thrashed about.  It is consistent with apparently purposeful conduct.  A simple example is furnished in the present case by the incident in the winter of 1996.  Another example is that of Mrs Falconer shooting her husband.  Neither the evidence of Professor Mullen and Dr Barry‑Walsh –

who were the experts called by the Crown –

nor the careful reasons of the other members of the Court have resolved the doubt I experienced, especially but not only when I read the evidence of Professor Burrows and Mr Stanley –

who were the defence experts –

that the applicant may have dissociated to such an extent as not to have had awareness or control over what he was doing.

The crucial difference between the defence experts and the Crown experts seemed to be on this issue about whether purposeful conduct could be undertaken by a person in the position suggested of dissociated and automatism states.

HAYNE J:   Or is that the same point as saying, what significance was to be attached to the grouping of the words?

MR GRACE:   Well, to be acting under automatism in the circumstances of this case, it was thought that one would have to be dissociative first.  But Professor Burrows and Mr Stanley, who were called on behalf of the defence, stated that it was not inconsistent with the state of the applicant at the time – on the material that they had been provided with and on interviewing the applicant – for purposeful conduct to have been undertaken by the applicant.  Professor Mullen was the strongest from the alternative viewpoint, but even he conceded that it was possible in a thrashing around by the applicant for the injuries to have occurred in the circumstances alleged by the Crown.  Dr Barry‑Walsh was closest, perhaps, to the position of the defence experts. 

All of this material is referred to in the outline of submissions, but could I just highlight some of the aspects of the evidence, if I may, your Honours, which exemplify the points about the issue as to whether each of the experts conceded that the applicant was in this particular state at the time and whether the jury ultimately could reach the conclusion beyond reasonable doubt that he exercised will in his actions.  At application book page 400 at line 18, his Honour the learned trial judge summarised the evidence of Dr Barry‑Walsh and at line 19 in the application book – it is line 9 on the actual page of the transcript:

Question:  “How does somebody get grossly dissociated, now moving to psychological blow dissociation?”  Answer:  “They get a very, very big surprise.”  Question:  “Such as?”  Answer:  “Something catastrophic.  Something very much out of the ordinary in terms of experience or of an overwhelming threatening nature to them.”

And then at line 36 on the page:

“I accept that such a state could exist.  It is possible.  I think it’s very unlikely but it is possible.”  Again asked:  “Well, in what circumstances?”  and he said:  “Something catastrophic”.

Professor Mullen, at application book 407 to 408, questioned in-chief at the bottom of the page at line 41:

“Professor, apart from the physical blow causing automatic behaviour, is it possible for somebody to receive a psychological blow such that they act in an automatic way, that is without will?”  Answer:  “There are states which follow very severe shock or other forms of psychological trauma which produce gross dissociation in the person’s mental function and in those states there can be such disorganisation and such disturbance of the integration of mental function that actions certainly can approach and possibly be actually in an automatic way.”  Question:  “Are such situations common?”  Answer:  “They’re very rare.”

So the Crown experts conceded that you could get psychological blow automatism.  The issue of division appears to be, in the end, whether that could be accompanied by the acts committed by the applicant.  The defence experts were very strong in their conclusions that they could. 

The ultimate issue for the jury was whether an ordinary man of the applicant’s age and circumstances, including his childhood, his upbringing, his home life, his attitudes and problems, his obsessive work ethic and achievement drive, his relationship with the deceased, including the violent incident in 1996 and the violent incident involving his father three weeks before the killing, and the revelations and taunts of the deceased on the night of the killing, could have entered a state of dissociation and automatism and, if so, whether the Crown had excluded that hypothesis beyond reasonable doubt.

My submission is that, at the end of the day, when one looks at all of the evidence and particularly has regard to conclusions in such cases as Falconer, the jury could not have been satisfied beyond reasonable doubt

that the alternative hypothesis of automatism was excluded on the evidence.  Those are the submissions, your Honour.

McHUGH J:   Yes, thank you.  The Court need not hear you, Ms Judd.

Special leave to appeal must be refused in this case.  The applicant seeks to set aside a conviction of murder and have a new trial ordered.  The application is over three years out of time and exhibits, including the death‑causing weapon, have been destroyed.  In addition, two witnesses no longer live in Australia and it is by no means certain that other prosecution witnesses could be found to give evidence if a new trial was ordered.

These facts by themselves would justify the refusal of special leave to appeal in this case, but in any event, in our view, an appeal would have insufficient prospects of success to warrant the grant of leave to appeal.  Accordingly, the application for special leave to appeal is dismissed.

AT 10.37 AM THE MATTER WAS CONCLUDED