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R v Morton

R v Morton

Case [2001] NTCCA 6 19 October 2001

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The Queen v Morton[2001] NTCCA 6
PARTIES:THE QUEEN

v
ALBRECHT MORTON

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:No. CA21 of 2000
DELIVERED:  19 OCTOBER 2001
HEARING DATES:  2 AUGUST 2001
JUDGMENT OF:  MARTIN CJ, MILDREN & RILEY JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:W J F Karczerski and I. Rowbottam
Respondent:  D. Bamber
Solicitors:
Appellant:Director of Public Prosecutions
Respondent:  Northern Australia Aboriginal Legal Aid Service
Judgment category classification:               B
Judgment ID Number:
Number of pages:  17

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Morton[2001] NTCCA 6
No. CA21 of 2000

BETWEEN:
THE QUEEN

Appellant
AND:
ALBRECHT MORTON

Respondent

REASONS FOR JUDGMENT
(Delivered 19 October 2001)
MARTIN CJ

For the reasons given by Mildren J, I agree with the orders he proposes.
MILDREN J:

[1]The facts and circumstances which give rise to this appeal are set out in the judgment of Riley J which I have had the advantage of reading.

As has often been said, the circumstances which give rise to a conviction for manslaughter are so various, that there is no established sentencing tariff. Manslaughter may be divided into two broad categories often referred to as voluntary and involuntary manslaughter. The significant difference between these two categories is that in the former case there is nearly always an intention to kill or to cause grievous harm, whereas in the latter there is not. Murder, which is reduced to manslaughter because of provocation is an example of voluntary manslaughter. In provocation manslaughter cases, the intent to kill or cause grievous harm is an aggravating factor which often, although not inevitably, places it in a more serious category than cases of involuntary manslaughter. In the Northern Territory, because of the effect of S 31 of the Criminal Code, in cases of involuntary manslaughter there must always be proved actual foresight that the accused’s acts could result in the deceased’s death. In this respect, Territory law relating to manslaughter differs from the common law which also includes manslaughter by criminal negligence where no foresight is required. Such a case is dealt with by the Code as an aggravated dangerous act contrary to S 154(1) and (3) of the Code, to which s 31 does not apply. At common law, if there is foresight amounting to recklessness, this would be murder. But in the Northern Territory there is no such thing as murder by recklessness. The provisions of S 162(1) of the Code establish what mental element, if any, need be proved by the Crown to establish murder: see Charlie v The Queen (1998) 7 NTLR 152; (1998) 99 A Crim R 232. Consequently the essential difference in the Northern Territory between voluntary and involuntary manslaughter is the nature of the mental element required. Clearly an intent to kill or to cause grievous harm is more culpable than mere foresight…

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 Morton

Details

AGLC: R v Morton [[2001]] NTCCA 6
Case: [2001] NTCCA 6
Decision Date: 19 OCTOBER 2001

CaseChat Overview and Summary

The case of *R v Morton* concerned an appeal against a conviction for murder. The appellant, Morton, had been found guilty of murder by a jury in the Supreme Court of the Northern Territory. The appeal was heard by the Court of Criminal Appeal of the Northern Territory.

The central legal issue before the Court of Criminal Appeal was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the court had to consider whether the evidence presented at trial was capable of supporting a finding that the appellant had acted under a sudden or temporary loss of self-control induced by provocation, thereby reducing the charge from murder to manslaughter.

The Court of Criminal Appeal analysed the evidence relating to the events preceding the death, including the appellant's testimony about the deceased's conduct and words. The judges considered the established legal principles of provocation, which require that the provocation must be such as to cause a reasonable person to lose self-control, and that the act of killing must be a response to that provocation. The court found that while there was evidence of a verbal altercation, it did not reach the threshold required to establish provocation as a defence to murder. The judges concluded that the trial judge's directions, when viewed in their entirety, were sufficient and that there was no misdirection on the law of provocation.

Consequently, the Court of Criminal Appeal dismissed the appeal and affirmed the conviction for murder.

Orders