R v Gaskell

[2016] QCA 302

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gaskell [2016] QCA 302

PARTIES:

R
v
GASKELL, Lawrence Alfred
(appellant)

FILE NO/S:

CA No 10 of 2015
SC No 678 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 16 December 2014

DELIVERED ON:

18 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

24 June 2016

JUDGES:

Fraser and Philip McMurdo JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where the appellant was convicted by a jury of murdering his former wife – where there was a history of resentment and animosity between the appellant and victim – where the couple had divorced in 2010 and had attempted to reach a consensus as to the division of assets –– where in summing up the Crown case the learned trial judge described the appellant’s alleged motive as his desire to eliminate the problem caused by the victim’s refusal to accept a property settlement that the appellant considered reasonable – where the trial judge adopted the Benchbook direction as to motive and directed that such a motive, if established, “would, of course, be very relevant” to the issue of intent – where the appellant contends that the summing up overstated the importance of any motive held by the appellant and, if any motive was proved, directed the jury to place too much weight upon it – whether the trial judge erred in directing the jury as to the permissible use of the appellant’s motive

De Gruchy v The Queen (2002) 211 CLR 85; [2002] HCA 33, considered
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited

COUNSEL:

A J Glynn QC for the appellant
V A Loury for the respondent

SOLICITORS:

Robertson O’Gorman for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. FRASER JA:  I agree with the reasons for judgment of Philip McMurdo JA and the order proposed by his Honour.

2. PHILIP McMURDO JA:  After a seven day trial the appellant was convicted of the murder of his former wife on 17 October 2011 in the house where they had lived.  He admitted killing her.  The questions for the jury were whether the prosecution had proved that he held the requisite intention to kill or do grievous bodily harm, that he had not acted in self defence[1] and that he had not acted in self preservation in an abusive domestic relationship.[2]

   [1]Either according to s 271(2) or s 272 of the Criminal Code.

   [2]Criminal Code s 304B.

3. His notice of appeal specified but one ground, namely that “the verdict was unsafe and unsatisfactory”.  However in neither the written nor the…