R v Nielsen - [2012] QSC 29

[2012] QSC 29

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

DALTON J

Indictment No 1036 of 2010

THE QUEEN

MERIN NIELSEN

BRISBANE

..DATE 16/02/2012

SENTENCE

HER HONOUR: Would you stand up, please, Mr Neilsen? Merin
Nielsen, you have been convicted by a jury after a trial on a
charge of aiding suicide. The suicide was Frank Ward, aged
76. There is no doubt that Mr Ward wished to commit suicide,
and did so.

Mr Ward was born in Scotland. He emigrated to Australia to
marry. He had no relatives of his own in Australia, although
he had relatives of his wife. They, however, lived in
Canberra. His wife and he lived in Brisbane.

His wife developed multiple sclerosis, and he nursed her
through a very long period of incapacity with that illness.
He was her sole carer, and it appears that he nursed her for
something like 20 years. As a result of that experience,
Mr Ward had no time for doctors, and he had a firm desire to
himself avoid a prolonged illness or incapacity.

The evidence was that Mr Ward was an isolated man in his old
age, and perhaps that was partly as a result of his being an
immigrant; partly, I suspect, as a result of the middle years
of his life being devoted to the care of his wife; and,
perhaps, partly as a result of his own personality.

I don't accept that he was lonely or vulnerable because of his
isolation. Witnesses described him as stubborn and
cantankerous. He certainly knew his own mind, and there is no
question that he had full capacity at all relevant times.

He seems to have had little contact with his wife's relatives.
He lived in a block of units which were public housing units
and seem all to have been occupied by single people, many of
whom were of an age with him. All of the residents of that unit block gave evidence that he kept to himself, more or less. He did regularly attend a meditation group, and that was for many, many years.

In about 1980 or 1981, when you were 19 or 20 and he was
around 45, you met when you joined that meditation group. You
had contact with him then regularly over a long period, but
the contact was of a limited nature, simply being at the
meditation sessions and perhaps at a cup of coffee held at the
hall after that. There is certainly no indication of any
closer or even social contact outside that meditation group.

In July 2007 Mr Ward suffered from a stroke. He went to
hospital. He was assessed during the day and discharged that
evening. That was the 11th of July 2007. The stroke was not a major event. He lost the use of his right arm temporarily. From what the other residents of the units say, and from what a witness Mrs Jansse says, it seems clear that the stroke knocked him about, not just…

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 Nielsen

Details

AGLC: R v Nielsen [2012] QSC 29
Case: [2012] QSC 29
Decision Date: 16/02/2012

CaseChat Overview and Summary

Merin Nielsen was convicted of aiding the suicide of Frank Ward. The court considered the legal issues around the criminality of assisting suicide, taking into account the facts and circumstances of the case. The court acknowledged that Ward had a right to commit suicide but emphasised that assisting suicide is illegal and must be deterred. The court found Nielsen's conduct deliberate and premeditated, with a personal financial interest in Ward's death. The sentencing judge considered various comparative cases but ultimately determined that a wholly suspended sentence was not appropriate. Nielsen was sentenced to three years' imprisonment, with a parole release date of 15 August 2012, effectively serving six months and one day.

Orders