Vorhauer v R - [2007] NSWCCA 125

New South Wales
Court of Criminal Appeal

CITATION: VORHAUER v R [2007] NSWCCA 125

HEARING DATE(S): 10 November 2006

JUDGMENT DATE:
14 May 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 66; Rothman J at 67

DECISION: 1. Appeal against conviction dismissed; 2. Grant leave to appeal against sentence but dismiss the appeal

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - application for leave to appeal against sentence - attempt by local council to enter appellant’s property - purpose of entry to carry out court order - use of weapon to prevent lawful apprehension - malicious wounding of police officers to avoid apprehension - whether self-defence considered by the jury - whether orders of the Council and Land and Environment Court were valid - whether police had authority to enter premise

LEGISLATION CITED: Companion Animals Act 1998 (NSW)
Judiciary Act 1903 (Cth)
Mental Health Act 1990 (NSW)
Criminal Appeal Act 1912 (NSW)
Jury Act 1977 (NSW)

CASES CITED: Adams v Kennedy (2000) 49 NSWLR 78
Maxwell v R (1996) 184 CLR 501
R v Macks and Ors; Ex Parte Saint (2000) 204 CLR 158
R v Presser [1958] VR 45
R v Vorhauer [2002] NSWCCA 483
University of Wollongong v Metwally (1984) 158 CLR 447

PARTIES: Florence Amelia Vorhauer (Appl)
The Crown

FILE NUMBER(S): CCA 2004/1772

COUNSEL: Appellant in person
J Dwyer (Crown)

SOLICITORS: Appellant in person
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/31/0438

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

LOWER COURT DATE OF DECISION: 18 December 2003

2004/1772

McCLELLAN CJ at CL
HULME J
ROTHMAN J
MONDAY 14 MAY 2007

VORHAUER, Florence Amelia v R

Judgment

1 McCLELLAN CJ at CL: The appellant, Florence Vorhauer, was convicted after trial before a jury of three offences:

1. Use of an offensive weapon, namely a Molotov cocktail, to prevent lawful apprehension.

2. Maliciously wound Stuart Crawford [a police officer] with intent to prevent lawful apprehension.

2 The appellant represented herself at the trial. She was sentenced on 18 December 2003 to a total of 4 years imprisonment, commencing 4 May 2003, with a non-parole period of 2 years. The appellant was 64 at the time of sentence. She was released to parole on 14 July 2005, following assessment of her mental heath. The full term of the appellant’s sentence will expire on 3 May 2007.

3 She now appeals her conviction and seeks leave to appeal against her sentence.

4 Before addressing the grounds of appeal it is necessary to provide some background and outline the complex and extensive history of this matter.

The facts

5 The appellant resides on a standard size suburban block in Tamworth. She lives with her daughter, Lisa, who suffers significant medical difficulties.

6 The offences were committed when local council officers and police attempted to carry out a Land and Environment Court order, made by Sheahan J on…

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 Vorhauer v R

Details

AGLC: Vorhauer v The Queen [2007] NSWCCA 125
Case: [2007] NSWCCA 125
Decision Date: 14 May 2007

CaseChat Overview and Summary

In the matter of Vorhauer v R, the appellant, Vorhauer, was convicted in the District Court of Victoria for charges including malicious wounding, resisting arrest, and hindering police in the execution of their duties. The case was appealed against the conviction and sentence, with the Supreme Court of Victoria hearing the appeal. The crux of the dispute revolves around the circumstances in which the appellant used a weapon against police officers attempting to execute a court order to enter and inspect his property. The appellant claimed self-defence, arguing that the officers acted unlawfully.

The primary legal issues before the court were whether the jury had properly considered the defence of self-defence and whether the court orders that allowed the local council and police to enter the appellant's property were valid. The appellant contended that the orders from the Council and Land and Environment Court did not provide the necessary legal basis for the police to enter the property and that any actions taken were therefore unlawful. Additionally, the appellant argued that the jury had failed to adequately consider the defence of self-defence.

The Supreme Court found that the jury had indeed considered the defence of self-defence, albeit briefly, but concluded that the evidence did not support the defence as the appellant's actions were disproportionate to the threat posed. The court also upheld the validity of the orders issued by the Council and Land and Environment Court, finding that they provided a sufficient legal basis for the police to enter the property. Consequently, the appeal against the conviction and sentence was dismissed by the Supreme Court, maintaining the original findings and penalties imposed by the District Court.

Orders