R v Morant

Case [2020] QCA 135

SUPREME COURT OF QUEENSLAND

CITATION:

R v Morant [2020] QCA 135

PARTIES:

R
v
MORANT, Graham Robert
(appellant/applicant)

FILE NO/S:

CA No 319 of 2018
SC No 1424 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 2 October 2018; Date of Sentence: 2 November 2018 (Davis J)

DELIVERED ON:

19 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2020

JUDGES:

Sofronoff P, Mullins JA and Boddice J

ORDERS:

1.   The application for leave to adduce further evidence be granted.

2.   The appeal against conviction be dismissed.

3.   The application for leave to appeal against sentence be granted.

4.   The appeal against sentence be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted of aiding suicide by aiding another in killing herself – where the deceased was the appellant’s wife – where the appellant aided the deceased to purchase and place the generator that the deceased used to kill herself – where the trial judge directed the jury that to be guilty of the offence the appellant must have aided the deceased knowing that the deceased “would or may” kill herself – whether there was a misdirection

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted of two counts of aiding suicide – where the deceased was the appellant’s wife – where the defence counsel at trial had addressed the jury on a “hypothesis of innocence” – where the trial judge directed that the jury must “exclude an innocent hypothesis beyond a reasonable doubt” – whether the trial judge directed the jury adequately regarding the burden of proof

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – FURTHER EVIDENCE – NATURE AND PROBABLE EFFECT OF EVIDENCE – GENERALLY – where the appellant was convicted of two counts of aiding suicide – where the deceased was the appellant’s wife –where the appellant applies for leave to adduce further evidence on the appeal – where the fresh evidence comprised emails written by the deceased some months before her death – where the appellant sought to use the emails as evidence that he had not influenced the deceased’s intention to kill herself – where the evidence at trial already showed that the deceased had formed an intention to die for some months before her death – where the fresh evidence was admitted on the appeal – whether the fresh evidence showed there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of aiding suicide – where the deceased was the appellant’s wife – where the…

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Details
AGLC
R v Morant [2020] QCA 135
Case
[2020] QCA 135
Decision Date

CaseChat Overview and Summary

The appellant was convicted of two counts of aiding suicide, with the deceased being his wife. The appeal against the conviction and sentence was dismissed, though leave to appeal against sentence was granted. The appellant argued that the trial judge misdirected the jury in relation to the mens rea required for the offence, that the trial judge did not adequately direct the jury on the burden of proof, and that the sentence was manifestly excessive. The court found that the trial judge did not misdirect the jury on the mens rea, and that the trial judge adequately directed the jury on the burden of proof. The court also found that the sentence was not manifestly excessive.

The appellant argued that the trial judge misdirected the jury in relation to the mens rea required for the offence of aiding suicide. The appellant submitted that the trial judge directed the jury that the appellant must have aided the deceased knowing that the deceased “would or may” kill herself, which was incorrect. The court found that the trial judge did not misdirect the jury in relation to the mens rea required for the offence of aiding suicide. The court found that the trial judge’s direction to the jury was consistent with the statutory definition of the offence, and that the jury was properly directed on the mens rea required for the offence.

The appellant also argued that the trial judge did not adequately direct the jury on the burden of proof. The appellant submitted that the trial judge directed the jury to exclude an innocent hypothesis beyond a reasonable doubt, which was incorrect. The court found that the trial judge adequately directed the jury on the burden of proof. The court found that the trial judge’s direction to the jury was consistent with established principles of criminal law, and that the jury was properly directed on the burden of proof.

Finally, the appellant argued that the sentence was manifestly excessive. The appellant submitted that the sentence of 10 years’ imprisonment for the first count of aiding suicide and six years’ imprisonment for the second count of aiding suicide was manifestly excessive, given that the appellant had no criminal history and showed no remorse. The court found that the sentence was not manifestly excessive. The court found that the sentence reflected the seriousness of the offences, and that the trial judge had properly taken into account the appellant’s lack of criminal history and his lack of remorse.

Orders

Orders of the court

1. The application for leave to adduce further evidence be granted.

2. The appeal against conviction be dismissed.

3. The application for leave to appeal against sentence be granted.

4. The appeal against sentence be dismissed.

Background

Background to the litigation

The ground of appeal against sentence, should leave be given, is that the sentence was manifestly excessive.Background The appellant was born on 30 December 1948. He had no criminal history. The deceased was born on 3 February 1958. She had been gainfully employed in financial administration positions prior to her marriage to the appellant in 2000. In 2006, the deceased obtained a WorkCover payment. Thereafter, the deceased suffered constant, chronic pain and severe limitation in physical movement. On 30 November 2014, the deceased was found dead in her motor vehicle. It was parked in a street over 10 kilometres from her home. A subsequent autopsy determined that the deceased died of acute carbon monoxide poisoning. At the time of her death, the deceased had three life insurance policies. The appellant was the sole beneficiary for each policy. The policies each allowed for payment in the event of suicide, should the event take place 13 or more months after the commencement of the policy.Counts Count 1 charged the appellant that between 1 February 2014 and 1 December 2014, he counselled the deceased to kill herself and thereby induced her to do so. The Crown particularised that the appellant counselled the deceased to kill herself by encouraging her:(a)by referring to and commending another individual who had committed suicide and left insurance moneys to his wife/partner; and/or(b)by further suggesting she also commit suicide like the individual did in particular (a); and/or(c)by explaining to her what he planned to do with the insurance moneys; and/or(d)by explaining it would not be a sin in Gods [sic] eyes to commit suicide; and/or(e)by explaining she was not strong enough to survive the raptures which were imminent; and/or(f)by agreeing to give a portion of the insurance moneys to individuals named on a list provided to him by his wife; and/or(g)by allowing her to visit a friend or friends on the condition she would commit suicide on her return; and/or(h)by telling her he knew a way to commit suicide; and/or(i)by verbally agreeing to help her to commit suicide. The Crown further particularised that the appellant intended that the counselling would induce the deceased to kill herself and that one or a combination of the acts of counselling did induce her to do so. Count 2 charged that on or about 29 November 2014 the appellant aided the deceased in killing herself. The Crown particularised that the appellant aided the deceased to kill herself by:(a)driving her to the automatic teller to enable her to withdraw the money for the generator; and/or(b)driving her to Bunnings Warehouse at Oxenford for the purpose of purchasing the generator; and/or(c)assisting with the loading of the generator into the vehicle; and/or(d)driving her and the generator back to the couple’s residential address; and/or(e)removing the generator from the boot of the car to allow it to be unpackaged; and/or(f)assisting with the placement of the generator back into the vehicle; and/or(g)leaving the deceased with access to the vehicle, by instead driving another vehicle to church on the day of her suicide.

Evidence

Evidence Before The Court

The Crown further particularised that, at time of doing these acts, the appellant intended the aiding would assist or help the deceased to kill herself.EvidencePolice investigation At 8.02 pm on the evening of 30 November 2014, the appellant telephoned 000 to advise that he had returned home to find a note from his wife and that it looked like his wife had gone from the home to do herself some harm. Prior to making this telephone call, the appellant made two telephone calls to the deceased’s mobile, one at 7.37 pm and one at 7.48 pm. Neither was answered. At 8.30 pm, two police officers stationed at North Tamborine, Scott Guerin and Matthew Down, attended the deceased’s residence in response to the report of a missing person. Guerin observed a white four wheel drive Nissan Patrol parked at the residence. He spoke to the appellant, who provided Guerin with a note written by the deceased, in the following terms:“To whom it may concern.This is no-one’s fault that I have done this. It is just life deals everyone a cross to bear in life but for me the pain, the humiliation of painful constitution, constant nausea, the pain it takes for me to do normal everyday things has become impossible. The only solution is to put me in a nursing home but I will not become a burden on everyone and also the country. It is not in nature and especially to Graham it is not fair on him to have to look after me 24 hours a day and then have no sleep when I can’t sleep. Please believe me it is my choice to do this and there is no-one to blame.Kind regards and God bless us all.Jennifer Morant” Guerin obtained the telephone numbers of both the deceased and the appellant. He also obtained the registration number of the deceased’s vehicle which was no longer at the house. The appellant told Guerin the deceased had severe back pain and was taking strong medication. He showed Guerin a drawer in the bedroom containing a large amount of medication. The appellant told Guerin that probably three weeks earlier, the deceased had taken an overdose of Endone tablets. The deceased had not gone to hospital, she had just slept for a long time. Guerin contacted the police station and asked for a triangulation of the deceased’s mobile phone in order to obtain an idea of the deceased’s location. He also conducted a search of the property and spoke with neighbours. Michael Jones, a sergeant of police stationed at North Tamborine police station performing the role of search coordinator, submitted the request for a triangulation of the deceased’s mobile telephone. That was returned at approximately 8.45 pm. It provided the general area in the Wongawallan suburbs. He tasked Senior Constables Edwards and Miers to search that area. At about 9.36 pm, Jones called the appellant to obtain further information to assist in the coordination of the search. During the conversation, he could hear that the appellant’s son was in the background. Jones described the appellant as calm and able to communicate with him in a level and controlled demeanour. He was not distressed during his questioning relating to the deceased’s condition, mental health, medications and where she may have gone.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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