R v Auberson - [1996] QCA 321

IN THE COURT OF APPEAL	[1996] QCA 321
SUPREME COURT OF QUEENSLAND
Brisbane
Before	Fitzgerald P. Pincus J.A. de Jersey J.

[R. v. Auberson]

[A-G v. Auberson]

C.A. No. 248 of 1996

T H E Q U E E N

BRADLEY WILLIAM AUBERSON Appellant

C.A. No. 249 of 1996

T H E Q U E E N

BRADLEY WILLIAM AUBERSON Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

FITZGERALD P.

PINCUS J.A. DE JERSEY J.

Judgment delivered 03/09/1996

JOINT REASONS FOR JUDGMENT OF FITZGERALD P. AND DE JERSEY J.
SEPARATE CONCURRING REASONS OF PINCUS J.A.

Appeal against conviction, application for leave to appeal, and the Attorney-General’s appeal against sentence all dismissed.

conviction could not be “usefully” argued, and no oral submissions
were made.
SENTENCE - manslaughter - appellant’s victim was his estranged wife - wife suspected of having an extramarital affair - appellant’s state of mind at the material time - appellant’s depression said to amount to a psychiatric disorder - savage attack on wife - mitigating circumstances.

Counsel:	M.E. Johnson for the Appellant Mrs. L.J. Clare for the Crown
Solicitors:	Harris Sushames for the Appellant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	28 August 1996

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DE JERSEY J.

Judgment delivered 03/09/1996

The appellant has appealed against his conviction of manslaughter on 15 May 1996, and has applied for leave to appeal against the sentence imposed. The trial judge sentenced the appellant to imprisonment for nine years and declared that the 515 days which he had been in custody from 17 January 1995 were days spent on that sentence. It was further ordered that the psychiatric reports in the possession of the prosecutor be placed with the file for the information of prison authorities and the Parole Board when the question of the appellant’s parole was considered by them.

The appellant’s victim was his wife, whom he unlawfully killed on 16 January 1995. They had been in a relationship for four years prior to their marriage and then been married for four years when the appellant’s wife left the matrimonial home with their 18 month old son on 31 December 1994. The appellant, who loved his wife and child and was emotionally and financially dependent upon his wife, had suspected for some months that she was involved in a extra-marital affair. He became depressed when she left and, on 15 January 1995, invited her to return to discuss the possible resumption of their marriage; he had recently found employment after a lengthy period of unwanted unemployment.

The appellant’s wife arrived at the matrimonial home at about 8.30 p.m. and was dead approximately seven minutes later. The only explanation of what occurred is to be found in a police interview with the appellant a number of hours later. He said that his wife “looked around, sat down, started showing me a piece of paper ... to change the phone number” and that he “tried to persuade her and talk to…

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 Auberson

Details

AGLC: R v Auberson [1996] QCA 321
Case: [1996] QCA 321
Decision Date: 3/09/1996

CaseChat Overview and Summary

The case of R v Auberson involved an appeal against the conviction and sentence of Bradley William Auberson, who was convicted of manslaughter for the unlawful killing of his estranged wife. The case was heard in the Court of Appeal of the Supreme Court of Queensland, presided over by Fitzgerald P, Pincus JA, and de Jersey J. The appellant had initially offered to plead guilty to manslaughter, which was rejected by the prosecution, leading to a trial for murder. The central issue at trial was the appellant's state of mind at the time of the killing, which was examined by four psychiatrists, two for the prosecution and two for the defence.

The appellant's grounds for appeal against his conviction were that the trial judge failed to direct the jury on the grounds of provocation and diminished responsibility, that the verdict was unsafe and unsound due to conflicting medical evidence suggesting an abnormality of mind, and that the sentence imposed was manifestly excessive. However, the appellant's counsel indicated that they did not consider any of the grounds of appeal could be usefully argued, and no oral submissions were made on the appeal against conviction. The prosecution argued that there was no miscarriage of justice, as diminished responsibility was indeed left to the jury, and the medical evidence was conflicting.

The court found that there was no substance to the appeal against conviction, which should be dismissed. Regarding the sentence, the appellant's counsel emphasized his depression and the psychiatric evidence that he was a vulnerable personality suffering from an adjustment disorder. The Attorney-General appealed against the sentence on the basis that it was manifestly inadequate, arguing that the trial judge failed to reflect the gravity of the offence and gave too much weight to mitigating factors. The court held that while the sentence was towards the lower end of the range for such offences, it did not warrant interference from the appellate court, as it was not manifestly excessive. The appeal against conviction, the application for leave to appeal, and the Attorney-General’s appeal against sentence were all dismissed.

Orders