R v Leonboyer - [2001] VSCA 149

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 275 of 1999

THE QUEEN
	v.
MICHAEL ERIK GONZALEZ LEONBOYER

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JUDGES:	PHILLIPS, C.J., CHARLES AND CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	26-29 March and 4 April 2001
DATE OF JUDGMENT:	7 September 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 149

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CRIMINAL LAW – Murder – Conscious and voluntary act – Defence of involuntary action by reason of non-insane automatism – Dissociation – Possibility of jury being misled by expert medical evidence – Provocation – Objective test – Gravity of provocation – Personal characteristics of accused – Ethnicity – Whether words alone can amount to provocation – Undue involvement or interference by judge – Whether verdict unsafe or unsatisfactory.

CRIMINAL LAW – Sentence – Prisoner sentenced on incorrect factual foundation.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.R. Flatman, Q.C. Ms K. Judd	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr A.J. Howard, Q.C. Mr R.J. Marron	Lethbridges

PHILLIPS, C.J.:

The applicant, who is aged 29, was convicted of murder by a jury in this Court on 26 October 1999. This offence, which carried a maximum penalty of imprisonment for life, was said to have been committed at Carlton on 6 May 1997. The name of the deceased, a young woman aged 19, was Sandra Morales.

After hearing a plea for leniency the learned judge, on 5 November 1999, sentenced the applicant, who had no prior convictions, to be imprisoned for 18 years. His Honour fixed a non-parole period of 14 years and made a declaration of 914 days pre-sentence detention.

The applicant later lodged notice of application for leave to appeal against conviction pleading the following grounds.

“1.The learned trial judge erred in failing to leave the issue of provocation for determination by the jury.
2.The conviction of the accused was unsafe and unsatisfactory being against the weight of the whole of the evidence and in the result, involved a miscarriage of justice.”

On 11 December 2000, the learned Registrar allowed the further ground:

“3.The learned trial judge’s participation in the trial process by questioning of witnesses, particularly expert witnesses, together with comments by his Honour during the charge was effected in such a manner and at such times so as to cause a miscarriage of justice.”

During the course of hearing these applications leave was sought of the Court to add yet another ground:

“4.The verdict was unsafe and unsatisfactory because there is a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled as to
(a)the expert evidence concerning the applicant’s defence of automatism; and/or
(b)the relationship of that evidence to the requirement that the prosecution prove beyond reasonable doubt that the applicant killed the deceased by a conscious and voluntary act or acts.”

The applicant also lodged notice of application for leave to appeal against sentence pleading that:

“The sentence imposed is manifestly excessive in all the…

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 Leonboyer

Details

AGLC: R v Leonboyer [2001] VSCA 149
Case: [2001] VSCA 149
Decision Date: 7 September 2001

CaseChat Overview and Summary

The defendant, Leonboyer, was convicted of murder and appealed against the conviction and sentence. The appeal raised questions about the adequacy of the defence of non-insane automatism, the role of expert medical evidence, the application of the objective test for provocation, and the potential influence of personal characteristics of the accused on the jury's assessment of provocation. Additionally, the appeal questioned whether the trial judge had unduly influenced the jury and whether the sentence was based on incorrect factual foundations.

The court examined whether the trial judge had correctly directed the jury on the defence of non-insane automatism, considering the possibility that expert medical evidence might mislead the jury. It assessed whether the trial judge had appropriately applied the objective test for provocation, taking into account the gravity of the provocation and whether words alone could constitute sufficient provocation. The court also considered whether the judge had unduly influenced the jury and if the sentence was grounded on incorrect facts.

In its reasoning, the court concluded that the trial judge had correctly directed the jury on the defence of non-insane automatism, and there was no undue influence on the jury by the judge. The court found that the evidence was sufficient to support the jury's conclusion that the defendant acted consciously and voluntarily, rejecting the defence of involuntary action. Regarding provocation, the court held that the trial judge had correctly applied the objective test, and the evidence supported the jury's finding that the provocation was not sufficient to reduce the charge to manslaughter. Finally, the court found that the sentence was based on an incorrect factual premise, as it relied on an assumption that was not supported by the evidence.

Consequently, the court allowed the appeal against the conviction but not the sentence. The conviction was quashed and a retrial ordered. The sentence was affirmed as there was no basis to alter it based on the court's findings.

Orders