R v Vollmer

Case [2011] QCA 355

SUPREME COURT OF QUEENSLAND

CITATION:

R v Vollmer [2011] QCA 355

PARTIES:

R
v
VOLLMER, Richard John
(appellant)

FILE NOS:

CA No 132 of 2011
SC No 587 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2011

JUDGES:

Margaret McMurdo P, Muir JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was convicted of murdering his de facto partner – where evidence as to the deceased’s past violent history in a previous relationship was available at the time of trial but not relied on by defence counsel – where there was no evidence led at trial or on appeal of a history of violence between the appellant and the deceased – where the appellant sought to rely on defences of self defence and provocation at trial – where the appellant submitted on appeal that defence counsel failed to follow his instructions in relation to evidence of the deceased’s past violent history – whether the conduct of defence counsel at trial gave rise to a miscarriage of justice

Criminal Code 1899 (Qld), s 271(2), s 304, s 668E(1)

Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, considered
R v Birks (1990) 19 NSWLR 677, considered
R v Hajistassi (2010) 107 SASR 67; [2010] SASC 111, cited
R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited
Re Knowles [1984] VR 751; [1984] VicRp 67, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, considered

COUNSEL:

M J Byrne QC, with A McDougall, for the appellant
M R Byrne SC for the respondent

SOLICITORS:

Potts Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  I agree with Muir JA’s reasons for dismissing this appeal against conviction. 

  2. The appellant was convicted of murdering his partner.  His contention that his counsel at trial should have called evidence of the deceased’s past violent history is made with the very considerable advantage of hindsight.  After reading a portion of the prosecutor’s final address to the jury[1] and the trial judge’s final directions to the jury,[2] it is now possible to conclude that such evidence would have assisted the appellant’s case at trial. It may have been of limited use as to self-defence for it is difficult to see how the force he used (multiple deep stab wounds to the deceased after disarming her) was “necessary for defence” under s 271(2) Criminal Code 1899 (Qld).

    [1]     Set out at [28] of Muir JA’s reasons.

    [2]     Set out at [30] of Muir JA’s reasons.

  3. But the trial judge's directions as to the question of loss of…

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Details
AGLC
R v Vollmer [2011] QCA 355
Case
[2011] QCA 355
Decision Date

CaseChat Overview and Summary

The appellant in the case of R v Vollmer was convicted of murdering his de facto partner and sought to appeal on the basis of alleged errors in the conduct of his defence counsel at trial. The central issue was whether the failure to introduce evidence of the deceased's past violent conduct, which was known to the defence but not presented, constituted a miscarriage of justice. The appellant argued that this omission was a breach of his instructions and had a significant impact on the jury's assessment of the self-defence and provocation defences he had raised.

The court considered the appellant's submissions that his instructions to his legal representatives were to pursue evidence regarding the deceased's violent history, which was detailed in documents obtained from her previous residence. Despite these instructions, the defence did not present this evidence during the trial. The court assessed whether the introduction of such evidence could have affected the outcome of the trial, particularly in relation to the credibility of the appellant's defence of self-defence and provocation. The court also weighed the potential prejudicial effects of presenting evidence of the deceased's violent past, which had occurred years before the incident in question and was unknown to the appellant at the time.

The court concluded that the historical evidence of the deceased's violent conduct was not likely to have been admitted due to its remoteness in time and the lack of knowledge by the appellant. The court determined that the omission did not result in a miscarriage of justice, as the evidence of the deceased's aggressive behaviour on the night of her death was sufficiently compelling. The appellant's injuries and the testimony of witnesses supported the account of the deceased attacking the appellant with a knife and her fingernails. Therefore, the appeal against the conviction was dismissed.

The final order of the court was the dismissal of the appellant's appeal against his conviction for murder.

Orders

Orders of the court

Appeal against conviction dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence established that the deceased was likely to have been a chronic user of amphetamines who had both alcohol and amphetamines in her system at the time of her death. Dr Little’s opinion was that chronic use of amphetamines could result in irrational and aggressive behaviour and that a tendency to aggressive behaviour resulting from the deleterious effects of amphetamine consumption would be exacerbated by alcohol consumption.The further evidence adduced on appeal Within days of the deceased’s death, the then legal representatives of the appellant, Potts Lawyers, obtained boxes of documents from the appellant’s residence. The boxes contained documents relating to the deceased’s Family Court and criminal matters as well as her psychiatric condition. One of the documents obtained was a copy of a 23 page affidavit sworn by Mr Paul Bodycote a previous husband of the deceased in connection with Family Court proceedings. The affidavit dealt with numerous episodes of violent conduct on the part of the deceased between 1994 and 1997. It described the deceased smashing a bottle over Mr Bodycote’s head and his being stabbed in the chest by the deceased with a fork. The affidavit depicted the deceased as a woman who frequently behaved destructively and violently when emotional or enraged, as was commonly the case. According to the affidavit, Mr Bodycote frequently bore obvious marks of assaults on him by the deceased, such as black eyes and split lips. Mr Bodycote’s statements concerning a stabbing by the deceased in 1997 were supported by a medical report dated 29 September 1997. The affidavit also dealt with: the deceased’s conviction for assaulting her daughter’s pre-school teacher; an interim domestic violence order made in Mr Bodycote’s favour against the deceased and the deceased’s alcohol abuse. Another one of the documents in the boxes was part of an affidavit by Mr Paul Bodycote’s brother dealing with aggressive, violent and generally inappropriate conduct by the deceased to her husband, relatives and friends. Relevant documents were copied by the appellant’s previous solicitors who provided copies of the documents to the police for safekeeping. The conduct of the appellant’s defence was then taken over by Legal Aid Queensland. The issue of the deceased’s violent past was raised by the appellant on a number of occasions verbally and in writing to representatives of Legal Aid and defence counsel. Letters from the appellant to Legal Aid stamped respectively “Received 8 Mar 2011” and “Received 24 Mar 2011” requested Legal Aid to make contact with various people in relation to the deceased’s past and mention a past boyfriend “Paul” who was “willing to help us”. The appellant swore that he wrote many letters to Legal Aid Queensland and to defence counsel “wanting them to consider the material [Family Services documents and documents pertaining to New South Wales and Queensland criminal matters] and raise it during [the] trial”.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In summary, counsel for the appellant submitted that the deceased’s violent nature and history were clearly relevant and, indeed, singularly important. The failure to call available evidence on this issue led to the appellant suffering a miscarriage of justice.Consideration The appellant did not suggest that there was any history of physical violence or emotional strain in his relationship with the deceased. Nor was there any evidence to that effect. There was, however, evidence of excessive consumption of alcohol on the night in question and of aggression on the part of the deceased. Her neighbour, Ms Lilley, said that the deceased was “bellowing” at the appellant. There was also evidence that the deceased had attacked the appellant with a knife. That is what he informed the operator when he rang 000. It was also what he told police when interviewed shortly after at a police station. The appellant’s account was supported by evidence. The appellant had a number of scratch marks to his lower chest, some “heaped skin” on the left ear and right shoulder, minor skin heaping and abrasions on the right forearm and abrasions and two incised wounds on the right forearm. The evidence of Dr Swain was to the effect that the wounds may have been caused by two or three blows by a knife and the abrasions to the chest would have been caused by fingernails. Having regard to this evidence indicating that the deceased had attacked the appellant with the knife and clawed at him with her fingernails, the evidence that the deceased had consistently behaved violently towards a husband of a previous marriage and had assaulted the husband’s brother and a teacher may not have been thought to have been particularly useful to the appellant. That was the view taken by defence counsel. The introduction of evidence about the conduct of the deceased during a period which was 12 or so years prior to the incident may have caused the jury to wonder why there was no evidence of any such conduct in the course of the relationship between the deceased and the appellant. There was also the possibility of the jury’s contrasting Mr Bodycote’s failure to respond physically to the deceased’s destructive and violently abusive behaviour over time with the appellant’s violent reaction. The main point of introducing the historical evidence would have been to assist the defence case that the appellant had been subjected to a violent attack by the deceased. Counsel for the respondent submitted that it was not clear that the evidence would have been admissible as the relevant conduct had concluded at least 12 years prior to the killing of the deceased and was unknown to the appellant at that time. There are authorities which support the proposition that evidence of a victim’s history of violent conduct is relevant and admissible where there is a controversy as to whether the victim was the aggressor even though the accused was unaware of that history.[13][13] R v Hajistassi [2010] SASC 111 at 72, 73; Re Knowles [1984] VR 751 at 768; and R v Mogg (2000) 112 A Crim R 417 at 428.