R v Morant [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: The application for leave to adduce further evidence be granted.The appeal against conviction be dismissed.The application for leave to appeal against sentence be granted.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 first count was aiding suicide by counselling another to kill herself and thereby inducing her to do so – where the appellant denied encouraging the deceased’s suicide – where there was witness testimony that the appellant had encouraged the deceased to take her life – where there was evidence that the appellant had informed the deceased of and encouraged the deceased to use the method that ultimately lead to her death – where the second count was aiding suicide by aiding another in killing herself – where the appellant aided the deceased to purchase and place the generator that the deceased used to kill herself – whether the verdicts were unreasonable / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted after trial of two counts of aiding suicide – where the deceased was the appellant’s wife – where the appellant was sentenced to 10 years’ imprisonment for the first count of aiding suicide and sentenced concurrently to six years’ imprisonment for the second count of aiding suicide – where the deceased was a vulnerable woman suffering chronic pain – where there was evidence that the deceased had vacillated about killing herself, but the appellant had encouraged her to do so – where the appellant had no criminal history – where the appellant showed no remorse – whether the sentence was manifestly excessive / Criminal Code (Qld), s 7(c), 311 / Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, applied / M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited / Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, applied / R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited / R v Dalton [2020] QCA 13, cited / R v Goodwin; Ex parte Attorney-General (Qld) (2014) 247 A Crim R 582; [2014] QCA 345, cited / R v Jeffrey [2003] 2 Qd R 306; [1997] QCA 460, cited / R v Jervis [1993] 1 Qd R 643, discussed / R v Mayberry [1973] Qd R 211, discussed / R v Morant [2019] 2 Qd R 501; [2018] QSC 222, related / R v Sherrington and Kuchler [2001] QCA 105, cited / R v Solomon [1959] Qd R 123, discussed / SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL: J P Benjamin for the appellant/applicant / D Balic for the respondent

SOLICITORS: Legal Aid Queensland for the appellant/applicant / Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P: I am indebted to Boddice J’s recitation of the facts, which allows me to rely on a summary of facts in order to explain my own reasons.

2. The appellant knew that Ms Morant had suffered from significant mental health issues for many years and was taking anti-depressants. The appellant also knew that she was suffering excruciating pain because of the degeneration of her spine. The appellant knew that Ms Morant had attempted suicide two or three times some months before her death and that one of these attempts had resulted in her hospitalisation. The appellant said that he had hidden all the ropes that were on the premises so that she could not hang herself. In the last six to nine months of her life, Ms Morant constantly talked to the appellant about killing herself and had forbidden the appellant from stopping her from doing so. In the area where the appellant and Ms Morant lived a man had used a generator to gas himself to death inside a shipping container. The appellant told Ms Morant about this. He told police that it was up to her if she decided to use that way to die.

3. About a month before she died, Ms Morant asked the appellant how to start a portable generator that was on the porch of their house. He told police that Ms Morant had made a number of unsuccessful attempts to start the machine. The appellant had then hidden the generator from her.

4. On the day before her death, Ms Morant told the appellant that she could not cope any longer and that she was “just going to do it”. The appellant told police that in his mind, she had “made up her mind” to kill herself. She said that she was going to use a generator to kill herself and asked the appellant to drive her to Bunnings Warehouse to buy one. She had difficulty driving because of her bad back and he knew this. He drove her to a Bunnings Warehouse in her car. He believed at the time that she was going to Bunnings to buy a generator that she would be able to start herself. He waited outside while she went inside the store to make her purchase. A CCTV recording showed Ms Morant outside Bunnings pushing a shopping trolley containing the generator. The recording also showed the appellant pushing the trolley. The generator was too heavy for her to lift on her own and the appellant helped to put it into the boot of Ms Morant’s car and he then drove her home.

5. On the day of Ms Morant’s death, which was the next day, a Sunday, the appellant said that although he did not know that Ms Morant was going to kill herself, he believed that there was a good chance that she would. He went to church. The appellant left the car containing the new generator at home and took himself off in his own car. By the time he got back his wife had killed herself using the generator in the boot of her car to gas herself.

6. It follows, therefore, that on the day before Ms Morant killed herself the appellant knew that she was planning to commit suicide by gassing herself with the exhaust fumes of a generator. He knew that she wanted to buy a new generator to use in that way. Knowing that she would have difficulty driving, he drove her to buy a generator. He helped her to put it into the trunk of her car and then brought it home. He then left her alone with the means of killing herself while he went to a Sunday church service.

“Aiding suicide

Any person who –

(a)procures another to kill himself or herself; or

(b)counsels another to kill himself or herself and thereby induces the other person to do so; or

(c)aids another in killing himself or herself;

is guilty of a crime, and is liable to imprisonment for life.”

8. Judicial statements about this offence are few. However, there is a useful analogue in s 7(c) of the Code which has been frequently explained in the authorities.

9. That section deems a person guilty of an offence who “aids another person in committing the offence”. That provision is different from s 7(b) which deems a person to be guilty who “does or omits to do any act for the purpose of enabling or aiding another person to commit the offence”. Section 7(c) does not require proof of a purpose.

10. Section 7(c) has another peculiarity. It says nothing express about the offender’s state of mind. Yet an entirely innocent person might aid the commission of an offence without knowing anything about it, such as a taxi driver who conveys an armed robber to the scene of the robbery without any prior knowledge about what the passenger intends to do at the destination.¹ For this reason, s 7(c) has always been understood to mean that the Crown is obliged to prove the accused’s state of mind as an element of the offence.

11. Most of the reported cases concerning s 7(c) involve aid that has been given during the commission of the principal offence. R v Solomon² was a case of that kind. One of three robbers helped while the other two bashed a guard and unintentionally killed him. Philp J said that it was implicit in s 7(c) that to be liable as a participant in the offence the “aider must know what offence is being committed or at least what offence might be committed by the person he is aiding”.³

12. In R v Jervis⁴ the appellant gave X a knife. X then gave the knife to Y. X and Y then murdered a victim. The appellant knew that X and Y wanted to lure a victim to a place to cut him. McPherson ACJ directed attention to the need for the prosecution to identify the “offence” the commission of which is the subject of assistance by the aider. Because s 2 of the Code defines “offence” to mean an act or omission that renders a person liable to punishment, it is that relevant act or omission which must be the subject of aid. McPherson ACJ said that in the case of offences in which an act or omission is rendered an offence only if it is accompanied by particular circumstances, the subject of the aider’s intention in such cases will be comprised of a “compound conception connoting an act or an omission together with such other circumstances as may be required to render it an offence under law.” In McPherson ACJ referred with approval to the dictum of Philp J quoted above as authority for the proposition that the required knowledge was as to the offence “being committed or at least what offence might be committed by the person he is aiding”.

“The Crown must then prove that when the accused did the acts of aiding – if you find beyond reasonable doubt that he did, in fact, do any acts of aiding – that he intended that the aiding would in fact aid the deceased to kill herself by using the generator to cause her death by carbon monoxide poisoning. In order to prove the relevant intention, which is element 2, the Crown must prove that the accused had a particular state of mind when he did the acts of aiding. If, in fact, you find that he did any acts of aiding. The state of mind that the accused must hold at the time of the aiding relates to the state of mind that the deceased either had at that point or would acquire. You will recall that in order to “kill herself”, which is the term in the charge, for the purpose of the charge, the deceased must have done an act which caused her death and she must’ve intended that the act would cause her death.

It is that act by the deceased with that state of mind by the deceased which the accused must have intended to aid. Therefore, the Crown must prove beyond reasonable doubt that when the acts of aiding were done by the accused, the accused knew that the deceased would or may kill herself by using the generator to cause her death by carbon monoxide poisoning.” (emphasis added)

17. When s 7(c) is applicable, uncertainty about what offence that the principal offender might commit may raise a problem if the case is one in which more than one offence might have been in contemplation by the offender or if one offence was in contemplation but a different offence has been committed. A question could then arise whether the offence that was committed was, or was not, one that the aider “might” or “may” have had in mind as the subject of aid. Jervis¹⁰ was such a case. But when in cases concerning s 7(c) there is only a single offending act in contemplation or when in cases concerned with s 311 there is only an act of killing oneself as the intended object of aid, questions about likelihood are irrelevant.

18. If the appellant did the things that he admitted doing with the intent of helping Ms Morant to kill herself, then whether she was likely or unlikely to kill herself is beside the point. If the appellant acted to help her in killing herself then, once she had actually killed herself with his aid, he was guilty of the offence. If she tried to kill herself with his aid, but failed, he would have been guilty of attempting to commit the offence.¹¹

19. It follows that the words in the trial judge’s direction “knew that the deceased would or may kill herself by using the generator” were used, and must have been understood by the jury to be used, to identify the object of the appellant’s intention. The direction makes it clear that the question as to the appellant’s state of mind was whether the appellant’s acts of aiding were intended by him to assist Ms Morant “in killing herself”. The direction was consistent with the absence of any requirement to prove that suicide was certain or likely when the aid was given. It was enough to prove that the appellant intended his actions to assist her in killing herself, and that, aided by what he did, she killed herself.

20. The elements of the offence in s 311 are:(a)The accused did an act;(b)The accused did that act intending thereby to aid the deceased in killing herself;(c)The deceased killed herself; and(d)The accused’s acts did aid the deceased in killing herself.

21. Whether or not suicide was objectively or subjectively likely when the assistance was rendered is not an issue that a jury has to decide. Nor would it be an answer to a charge of aiding suicide for an accused to demonstrate the unlikelihood of suicide when the assistance was given (although that might be a fact that is forensically relevant to the issue of intent).

22. In this case, there was ample evidence from the appellant’s own mouth to demonstrate that his intention in doing the acts charged was to help Ms Morant in killing herself.

“And what we’ve got up to now is I want to put to you what we lawyers call the hypothesis of innocence. The hypothesis of innocence is the version of the events on which the person charged is innocent. It’s the story which makes sense of the defence case that the person before you is innocent.

The law is very clear. You don’t have to believe the hypothesis of innocence beyond all reasonable doubt or even that it’s probable. You’ve only got to believe that it is possible. It’s up to the prosecution to negative it and prove that it is not reasonably possible. That you’ve got to have no reasonable doubt that what I’m about to tell you, the story that I’m about to tell you, you’ve got to have no reasonable doubt that it’s wrong, because if you do think that there is a possibility, then the law says the man charged is not guilty.

This is a hypothesis of innocence. Graham did not encourage Jenny to end her life. The truth of the matter about that is what Jenny says about the life insurance, not what other people say she said. And Graham did not aid suicide when he helped Jenny lift the generator on that Saturday. He did not help her to lift it, with the intention of helping her to end her life. He did not believe that she would use it for that purpose. And, in particular, he did not believe she would use it for that purpose when she did. And when she did he was shocked.

So now I’m going to give you a spelled-out version of the hypothesis of innocence.”

26. Later, defence counsel told the jury:

“While not fully excluding Graham having touched the handle, nor wholly excluding that you or I did, it does not exclude the possibility that a third individual contributed to the DNA profile.”

27. A little later, defence counsel repeated this proposition:

“All I can say to you is that the Crown has not rendered the possibility of a third person impossible. Nor have they rendered the possibility of a third person so fanciful that no rational human being could entertain it.”

28. And again:

“… all you have to believe in order to acquit Graham of both charges is that you, when you think about it, cannot exclude the possibility that it might have happened in some other way than Jenny pressing the button, getting in the car and just sitting there and waiting for it to happen.”

29. In order to find the accused guilty in a case based upon circumstantial evidence, it is necessary not only that guilt should be a reasonable inference but that it is the only rational inference that the circumstances allow to be drawn. The Crown is obliged to disprove any rational hypothesis consistent with innocence that fairly arises on the evidence.

30. Defence counsel’s submissions were apt to mislead the jury into thinking that they were obliged to acquit if they concluded that the “possibility” that a third party was involved in the death had not been excluded. His Honour was, therefore, obliged to ensure that the jury did not entertain any such misconception.

31. His Honour had directed the jury in the following terms at the beginning of his summing up:

“You can draw inferences from [evidence] but you might recall from my opening remarks that there are three factors that must be kept in mind: firstly, you may only draw reasonable inferences; secondly, your inferences must be based on facts you find proved by the evidence. So there must be a logical and rational connection between the facts you find and your deductions or conclusions. And thirdly, if more than one inference is reasonably open, that is, an inference adverse to the accused, in other words, pointing to his guilt, and an inference in his favour, in other words, pointing to his innocence, then you must give the accused the benefit of the inference in his favour. Obviously, you are not to indulge to intuition or in guessing.”

32. A little later his Honour said:

“Now, the burden of proof. The burden rests on the prosecution to prove the guilt of the accused. It’s often said that the Crown brings the charge and the Crown must prove the charge. There is no burden on an accused to establish his or her innocence. The accused is presumed to be innocent. He may only be convicted if the prosecution establishes beyond reasonable doubt that he is guilty of the offence charged.

Now, you’ll recall that when the Crown case finished, my Associate called upon the accused and asked him whether he intended to call any witnesses or give evidence himself. And through Mr Wells, he elected not to give evidence and not to call witnesses. So in this case, the accused has not given or called evidence. That is completely his right. He is not bound to give or to call evidence. He is entitled to insist that the prosecution prove the case against him if it can.

The prosecution bears the burden of proving the [guilt] of the accused beyond reasonable doubt, and the fact that the accused did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill gaps, if any, in the evidence led by the prosecution. It proves nothing at all and you must not assume that because he did not give evidence, that adds in some way to the case against him. It cannot be considered at all when you are deciding whether the prosecution has proved its case beyond reasonable doubt, and it most certainly does not make the task confronting the prosecution any easier. It does not change the fact that the prosecution retains the responsibility to prove guilt of the accused beyond reasonable doubt.

For the prosecution to discharge its burden of proving the guilt of the accused, it is required to prove beyond reasonable doubt that he is guilty of the charges. This means that in order to convict, you, the jury, must be satisfied beyond reasonable doubt of every element that is component that goes to make up a particular offence that you are considering.”

33. The appellant complains about the following passage in his Honour’s summing up:

“Then, this morning, Mr Wells [who was defence counsel] said to you that he was going to tell you what he described as the hypothesis of innocence. He said to you that if one of the [hypotheses] of innocence was possible, then you would have to acquit. I can tell you, in law, the issue is whether you can exclude an innocent hypothesis beyond reasonable doubt”.

34. It is not possible to read the words “exclude an innocent hypothesis beyond a reasonable doubt” so that they are understood to mean, as the appellant would have it, “prove an innocent hypothesis”. The process of exclusion assumes that the onus is on the Crown, as the judge had painstakingly directed.

35. This ground has no basis and should be rejected.

36. The appellant’s third ground of appeal requires reliance upon fresh evidence. The appellant sought to tender evidence about Ms Morant’s correspondence in two emails to a Dr Nitschke, who is said to be a proponent of voluntary euthanasia.

37. In the first email Ms Morant told Dr Nitschke about her suffering and sought his help. The inference is that she was seeking advice about how to commit suicide. The second email contains a great deal more detail about Ms Morant’s anguish and pain and asked for his help about “how to end my life in a peaceful manner”.

38. It may be accepted that these emails are fresh evidence because they were not reasonably available to the appellant for use at his trial. However, it is impossible to see how they could have helped the appellant to secure an acquittal. The emails were sent in May and September 2014 respectively. There was evidence at the trial that in August 2013 Ms Morant was talking to Ms Dent, who gave evidence, about killing herself. In February 2014 she told her sister, Ms Lucas, who also gave evidence, that the appellant had told her the story about a man who had gassed himself using a generator and that the appellant had encouraged her to insure her life and was encouraging her to kill herself.

39. It was said that these emails would have affected the credit of Ms Lucas and Ms Dent but how that was so was unexplained. Otherwise it was suggested in oral argument that the evidence about Ms Morant’s own desire to commit suicide bore upon the count of counselling suicide, which was count 1. The evidence could not have helped the appellant. It would, instead, have reinforced Ms Morant’s vulnerability to the appellant’s inducements.

40. The appellant’s final ground of appeal, ground 4, is that the jury could not rationally have convicted the appellant on count 2 because the Crown had not excluded a rational hypothesis consistent with innocence, namely that a third party had started the generator.

41. The appellant’s written submissions on this ground were succinct:

“[58] The appellant’s arguments in relation to this ground are, to some extent, bound up with his arguments in relation to grounds 1-3 above.

[59] The two charges both included a mental element specific to the appellant’s state of mind at a particular time. There was no direct evidence of the appellant holding any such intention; the only evidence was circumstantial.

[60] For this reason, the jury could only be satisfied of the appellant’s guilt if they could conclude that there was no rational inference open on the evidence consistent with the appellant’s innocence.

[61] The appellant submits that, for the reasons advanced at trial, there was at least one rational inference open on the evidence consistent with the appellant’s innocence.

[62] The availability of this inference is only increased having regard to the submissions made in relation to grounds 1-3 above. For this reason, the consideration of the other grounds is necessary before finally determining Ground 4.”

42. In oral argument, the appellant’s counsel put forward no further argument to support ground 4 but submitted that that ground was “bound up with the arguments in relation to the other three grounds”. It follows that this ground has no substance.

43. The appellant has sought leave to appeal his sentences.

44. Davis J sentenced the appellant to 10 years’ imprisonment on count 1 and to a concurrent term of six years’ imprisonment on count 2. The appellant will become eligible for parole after serving five years’ imprisonment.

45. The appellant points to no errors of fact or of law in the exercise of discretion. He merely submits that, given the appellant’s age (he was 69 years old when he was sentenced), his previous good character and the unlikelihood of reoffending, the sentence was too severe. He submits that a sentence of eight years’ imprisonment on count 1 should have been imposed.

46. Davis J made findings of fact to inform his exercise of discretion. The appellant did not challenge any of the findings.

47. It was implicit in the jury’s verdicts that the appellant had counselled Ms Morant to kill herself with the intention that she should commit suicide. It also follows that the jury found that the counselling was effective to induce her to commit suicide so that, but for the appellant’s counselling, she would not have gassed herself on 30 November 2014. It is also implicit in the verdicts that the appellant helped Ms Morant to kill herself and that his aid was effective.

48. Between July 2010 and July 2013 Ms Morant obtained three separate policies of life insurance from three different insurers. On the day she died the appellant was the sole beneficiary under each policy and the total insurance money was $1.4 million.

49. In her conversations with her sister, Ms Lucas, the deceased was described as hysterical and Ms Morant told her sister that her life was in danger. She said, “It’s the insurance policies.” She said that the policies had a payout amounting to $1.4 million and that the appellant had encouraged her to take out the second and third policies. She disclosed to her sister that the appellant had said that a customer of his had taken out policies of insurance in favour of his wife and had then killed himself. The appellant said that that was “an amazing and wonderful thing” to have done. He encouraged Ms Morant to do the same for him. He told Ms Morant that it would not be a sin in God’s eyes to commit suicide because she would be doing something good for the church and for him.

50. Ms Dent said that Ms Morant had told her that the appellant had said that he knew a way by which she could kill herself that would cause no pain. Ms Dent said that Ms Morant explained to her that she would have everything set up, that the appellant would go to church and would come home to find her with a note. That is what actually happened except that Ms Morant did not die at home.

“The lack of comparable sentences may deprive the sentencing judge of the assistance of “the yardstick” for testing the proposed sentence, but it does not preclude the sentencing judge from otherwise finding the relevant facts for the purpose of the sentencing, weighing up the relevant factors relating to the offence and the offender, and applying the principles of sentencing found in the relevant legislation and the common law, in order to reach the appropriate sentence for that offending. The sentencing judge may very well find the exercise of the discretion to be more difficult in the absence of, and without the usual assistance afforded by, comparable sentences, but as a matter of principle the sentencing judge will have available sufficient material from the evidence adduced on the sentence and the relevant law to undertake the well defined process of sentencing.”

55. Section 9(2) of the Penalties and Sentence Act 1992 (Qld) requires a court to have regard, relevantly, to:(a)The nature of the offence and how serious it is, including the harm done to the victim;(b)The extent to which the offender is to blame for the offence;(c)The offender’s age and character;(d)The presence of any aggravating factors;(e)The presence of any mitigating factors;(f)The maximum penalty; and(g)How much assistance the offender gave to law enforcement agencies in the investigation of the offence.

56. Suicide itself is not a crime. Attempting to commit suicide was a misdemeanour until 1979.¹⁴ Section 311 creates three offences:(a)Procuring another to kill herself;(b)Counselling another to kill herself thereby inducing her to do so; and(c)Aiding another to kill herself.

57. Like manslaughter, the seriousness of these offences can vary widely in terms of the moral culpability involved. However, the maintaining of the offences in the statute book after the repeal of the offence of attempting suicide demonstrates that Parliament’s, and society’s, judgment about the two categories of offence are not the same. The difference is crucial to sentencing.

58. Suicide has never been universally treated as a moral wrong. In his book, The Sanctity of Life and the Criminal Law,¹⁵ Professor Glanville Williams traced the attitude of various societies to suicide.¹⁶ Before the Christian era the Romans treated it as a morally acceptable way to end one’s own suffering. The Hebrew Bible contains only four instances of suicide and in none of them does the text or the context condemn it.¹⁷ The Christian Bible makes no mention of it. Professor Williams showed that the Christian attitude that suicide was sinful owed its origin to St Augustine of Hippo who had to deal with the problem of some Christians regarding suicide as the solution to the risk of sinning in this life.

59. Later, it became convenient under English common law to regard the commission of this sin as tantamount to self-murder¹⁸ and, therefore, a crime because the property of the offender would escheat to the offender’s lord and, later, to the Monarch. It was then a short step to regard an attempt to commit suicide as also a crime and the law of accessorial liability would apply to aiders and abettors. Because suicide was self-murder, an aider would be guilty of murder.

Appeal

80. The grounds of appeal against conviction are:(a)the learned trial Judge erred in directing the jury as to the elements of the offence in Count 2;(b)the learned trial Judge erred in failing to direct the jury adequately as to the burden of proof;(c)fresh evidence not discoverable by reasonable diligence at the time of trial has become available, establishing that a miscarriage of justice has occurred; and(d)the verdicts are unreasonable and cannot be supported having regard to the evidence.

81. The ground of appeal against sentence, should leave be given, is that the sentence was manifestly excessive.

Background

82. The appellant was born on 30 December 1948. He had no criminal history.

83. 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.

84. In 2006, the deceased obtained a WorkCover payment. Thereafter, the deceased suffered constant, chronic pain and severe limitation in physical movement.

85. 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.

86. 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

87. 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.

88. 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.

89. 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.

90. 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.

Evidence

Police investigation

91. 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.

92. 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”

93. 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.

94. 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.

95. 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.

96. 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.

97. The appellant told Jones about a month ago the deceased had been asking him about how to start a portable generator the appellant had on the porch. The appellant thought it was strange and he was worried so he hid the generator in the shed. Jones asked the appellant to check whether the generator was still in the shed. The appellant returned about a minute later and said it was still there.

98. At about 9.50 pm, Edwards located the deceased’s Ford sedan parked in a cul de sac in Wongawallan. The deceased’s vehicle was found approximately 11 to 12 kilometres from her residence. It took approximately 12 minutes to drive that distance. The vehicle had all of its doors and windows closed, and the engine was not running. There were no hoses running from the exhaust system of the vehicle.

99. There was a female seated in the driver’s seat. She had some dark glasses on and appeared to be deceased. There was a handbag on the front passenger seat. It contained the deceased’s Queensland driver’s licence. A pink “stick it” note, with the words “do not resuscitate me” written on it,²⁴ was stuck just next to the automatic gear lever.

100. When Edwards opened the vehicle door, he detected a very strong smell of carbon monoxide. He opened all four doors of the vehicle in an attempt to rid it of fumes. He observed that the back seat had been folded down. There was a generator in the boot of the vehicle. It was a Ryobi brand petrol generator. It looked brand new. It was obvious it was the source of the fumes. It was not running. Everything was cold to touch. There was a little bit of petrol still in the bottom of the generator. Edwards thought that the generator had stalled as it could not pick up the fuel left in it anymore.

Police interviews

108. At the conclusion of the Crown case, the appellant elected to neither give nor call evidence. However, as part of the Crown case, there was tendered two recorded interviews between police and the appellant.

109. In the first interview, conducted on 8 January 2015, the appellant said he had known the deceased for 14 years. She had an employment history in stockbroking and in the Public Service. As a result of work harassment, she developed significant mental health issues. The deceased did not hold similar employment after that breakdown. The deceased had also had surgery due to degeneration of her spine. That operation was not successful in relieving her pain, which remained excruciating and constant. She relied heavily on medication, including antidepressants.

110. The appellant said there had been past suicide attempts. The deceased had overdosed on prescription medication, necessitating hospitalisation. The appellant rang an ambulance on that occasion. There had been two or three suicide attempts some months before her death. The deceased overdosed on prescription medication at home. The first of these attempts was three or four months before her death. The second was a month or so later in mid to late October. The appellant did not feel it was necessary to take her to hospital on either occasion. The deceased had forbidden him from ever stopping her from taking her life. The appellant said you go along with it because you are seeing someone suffering in so much pain.

111. The appellant said his conversations with the deceased about never stopping her from killing herself mainly occurred in the last six to nine months. Before that she did not talk like that, but every day she wanted to die. The appellant said “I got such a zest and zeal to live she had such a zest and zeal to die”.²⁷ The appellant said the deceased watched “bloody CSI shows” and that if you see it enough on TV it was half normal.

112. The appellant said the deceased was basically housebound due to depression and back pain. She had her highs and lows. She would take two or three weeks to come out of her low.²⁸ The appellant tried to talk the deceased out of wanting to die but he had nothing to promise her that her pain would be better tomorrow. The appellant said he has been told since that the deceased had been telling others that one day she would do it.

113. The appellant said the deceased received money for the harassment at the workplace. It was approximately $450,000. It was received seven or eight years before her death. She invested $50,000 in a property at Mundoolun. The rest was invested in buying and selling properties. They had lost money in the global financial crisis. The deceased did not own any property. The appellant owned a half share in the property at Mundoolun. The other half share was owned by the appellant’s ex-wife. When they were in financial trouble, his ex-wife had baled them out. The appellant used the money to buy some bobcats and excavators to have a multiple stream of income. They did not own any property on Tamborine Mountain. The deceased did not have significant money in shares or in the bank. She had a gift in spending money, with expensive tastes.

Other evidence

142. On 3 December 2015, Guerin received a telephone call from the deceased’s brother in law, Paul Lucas. Lynette Lucas, the deceased’s sister, Judy Dent, the deceased’s friend and Cornelia (Nelly) Winters, Dent’s sister, were subsequently spoken to by police.

143. Lynette Lucas gave evidence that she had limited contact with the deceased after her marriage to the appellant in approximately 2000. Lucas had left messages, with little response. The appellant had told Lucas on one occasion that the deceased was not capable of speaking and did not want anything to do with the family. Lucas was aware from her limited conversations with the deceased that her sister had concerns about finances. The deceased told Lucas that the appellant would like her to get a job but she was not always well enough to work.

144. The deceased also told Lucas she had become a born again Christian in the appellant’s religion. The deceased said the appellant would like to become a pastor of his own congregation. The deceased said the appellant had strong views about the forthcoming end of the world. The appellant had concerns “about the raptures and Armageddon” and that the deceased would not be able to cope. The appellant always said the deceased would probably die before this happened. The deceased said, about the raptures, “It’s a prelude to the end of the world, and they can come in different forms, and they could be rats and fireballs and things coming out of the heavens and they are attacking people and you’re running away”.⁴²

145. On 14 February 2014, the deceased told Lucas she feared for her life. She had insurance policies and it was “all about the money” with the appellant. The appellant had encouraged the deceased to take out the insurance policies, totalling $1.4 million, telling her of a person who had suicided on the mountain. “It’s an amazing and wonderful thing that [that man] has done for [his wife] to leave her debt free”. Lucas told the deceased she did not need the insurance policies and that her life was in danger with these insurance policies. The deceased agreed to cancel the policies.⁴³

146. Lucas said the deceased told her that the appellant had taken her to see a property called Flame Tree, which he was going to use as a place of safety on the coming of the raptures and Armageddon. The deceased told the appellant she did not want to be any part of a communal environment but the appellant was adamant.

147. Lucas said at one point the deceased gave Lucas an envelope containing information packs in relation to the insurance policies. The deceased wanted to get them out of the house and asked Lucas to keep them. The deceased said the appellant wanted her to kill herself. The appellant did not believe it would be a sin in God’s eyes to commit suicide because the deceased was doing something good for the church and helping the appellant. The appellant reinforced to her that the raptures and Armageddon were very imminent and that it would be better that she not be around to experience it. The deceased said the appellant would not be able to wait a waiver period of 13 months, until September 2014, for the policies to become valid.

“So Nelly and I will come tomorrow and say goodbye to you forever, but know that you can always change your mind and come home at any time. You will always be welcome with open arms.”⁶⁷

184. Dent said she was surprised when the deceased told her that the deal for the deceased being able to come down to Dent was that she would have to kill herself when she went back. Dent thought that after the deceased cancelled the Peru trip, taking her own life was no longer an issue. Dent did not ring the police when told of this agreement because that evening, after hours of conversation, the deceased told Dent she was going to tell the appellant that she was not going to do it.

185. Dent agreed that, in her statement to police, she said the deceased told her on 7 November 2014 that her solicitor had advised that the deceased would have to change the life insurance policies to having the appellant as the sole beneficiary as otherwise her sister, aunt and another beneficiary would be implicated if anything happened to her.⁶⁸ That conversation was in regards to the explanation of why she did not go to Peru. The deceased did not mention the appellant would be implicated as the deceased was going to die of a heart attack from taking the veterinarian’s medication.

186. Dent agreed that, in the days prior to the deceased’s death, she had sent text messages to the deceased which expressed concern in relation to the appellant’s health. Dent also sent a text message in the month before the deceased’s death, asking if she could speak to the appellant. The deceased replied no to that request. That request was sent after the deceased had disclosed to Dent that she was determined to end her life. Dent wanted to speak to the appellant to tell him she knew from the deceased that she had become determined to end her life. Dent was angry and could not believe that the appellant could let her go through this plan. Dent said she was hesitant to enlist the appellant to try to stop the deceased from ending her life because she thought she would be just cut off, as the deceased had told her on numerous occasions that, if she spoke to the appellant about this, the appellant would be very angry with the deceased and upset that she had discussed their business or plans.⁶⁹

187. Dent accepted she had had conversations where the deceased told her she wanted to die because the pain was too much to bear. However, all of the conversations she had with the deceased included reference to life insurance, promises to everybody and the appellant’s financial situation at that time. Dent agreed the deceased had sent her a text message on 4 November 2014 saying “Please, I have to do this. I will be out of pain and free”.⁷⁰ Dent accepted that on the morning of 30 November, the day the deceased died, she believed the deceased was not about to take her life.

“In our meeting yesterday you informed me your intentions were to go to London for a back operation and if that operation was unsuccessful then you plan to fly to Peru and obtain medication that you would self-administer that would effectively euthanise yourself.

I also confirm that I am not providing advice in relation to your life insurance policies and, particularly, I am not providing advice in relation to whether your policies will pay out if you take your own life.”

208. The three life insurance policies held at the time of the deceased’s death were taken out over a three year period between 2010 and 2013.

209. One policy, with Guardian Life Insurance, was taken out on 26 July 2010. At the time of the deceased’s death, it had a value of $500,000. The most recent change to its value occurred on 19 June 2013. On 8 April 2013, a friend of the deceased was nominated as the sole beneficiary by way of telephone call. On 21 June 2013, the appellant was nominated as the sole beneficiary. On 5 March 2014, Lucas was nominated as the sole beneficiary. On 2 June 2014, the appellant was again nominated as the sole beneficiary. Each of these subsequent nominations was made through official documentation.

210. A second policy, with Real Family Life Cover Insurance, was taken out on 5 July 2013. Its value at the time of death was $400,000. The most recent change to its value occurred on 17 July 2013. On 5 March 2014, Lucas was nominated as the sole beneficiary. On 29 April 2014, the appellant was nominated as the sole beneficiary. On 29 October 2014, the insurance company received an incomplete beneficiary form via post, nominating seven people as beneficiaries (the appellant was to receive 26 per cent under this nomination). On 6 November 2014, the insurance company received two correctly completed beneficiary forms, one via post and dated 3 November 2014 nominated five people as beneficiaries (the appellant was to receive 25 per cent under this nomination); the other, faxed on 6 November 2014 from the deceased’s lawyer, nominated the appellant as a sole beneficiary. On 10 November 2014, the deceased clarified by email that the appellant should be the sole beneficiary.

211. The third policy, with Aussie Life Plan Insurance, was taken out on 17 July 2013. At all times its value was $500,000. On 5 March 2014, Lucas was nominated as the sole beneficiary for this policy. On 29 April 2014, the appellant was nominated as the sole beneficiary.

Appellant’s submissions

212. The appellant submits that the trial Judge erred in his direction in relation to the elements of Count 2. Unlike s 7 of the Code, s 311 establishes a criminal offence. The trial Judge directed the jury that the Crown must prove beyond reasonable doubt that when the acts of aiding were done by the appellant, the appellant knew that the deceased would or may kill herself by using the generator to cause her death by carbon monoxide poisoning. The word may results in an impermissibly broad direction in respect of the intentions of the deceased. In order to aid another person to kill himself or herself, there must exist in the mind of the aider more than a mere possibility of an outcome occurring. In order to establish guilt, there must be in the mind of the aider an awareness of the probability or high likelihood that the other person will kill himself or herself. This misdirection deprived the appellant of a fair chance of acquittal, both in respect of Count 1 and Count 2, having regard to their close interaction.

213. The appellant submits that the trial Judge further misdirected the jury. Whilst the trial Judge correctly directed the jury that the question in respect of innocent hypothesis was whether the jury could exclude an innocent hypothesis beyond reasonable doubt, that direction occurred in the context of a reference to defence counsel referring to possible hypotheses of innocence. The earlier proper directions in relation to the burden and standard of proof were insufficient to correctly direct the jury that the onus of excluding any hypothesis of innocence rests at all times with the Crown. The failure to do so may have left the jury with the impression that the appellant had an onus of establishing such an hypothesis.

214. The appellant further submits that two emails, sent by the deceased to a renowned proponent of voluntary assisted euthanasia in May and September 2014, neither of which were in the possession of the appellant prior to the trial, were relevant and admissible. They contradicted the evidence of Lucas and Dent that the deceased never mentioned to them contemplating taking her own life prior early November 2014. Had the jury been aware of the emails, it would have significantly impacted on their assessment of the credibility and reliability of Lucas and Dent and on their assessment of the appellant’s conduct in determining his guilt in respect of Count 2 on the indictment. There is a significant possibility that the jury, had they known of those emails, would have determined that the deceased either constantly vacillated about whether she was going to take her own life, or had already determined to take her own life but not effectively communicated this to the appellant.

215. Finally, the appellant submits that an independent assessment of the evidence supports a conclusion that it was not open to the jury to be satisfied beyond reasonable doubt about the appellant’s guilt of either count. There was at least one rational inference open on the evidence not consistent with the appellant’s guilt. That inference was not excluded by the Crown beyond reasonable doubt.

Respondent’s submissions

217. The respondent submits that the trial Judge did not misdirect the jury in respect of the elements of Count 2. The trial Judge correctly directed the jury that it was not enough that the appellant’s acts did, in fact, aid the deceased in killing herself. In order to convict, the jury must be satisfied beyond reasonable doubt that, at the time the appellant did those acts, the appellant must have intended that his acts of aiding would assist or help the deceased to kill herself. The use of the word “may” was confined to the discussion of the very specific factual scenario, being the use of a generator by carbon monoxide poisoning. Having regard to those circumstances, it could not be said that the use of the word “may” caused a miscarriage of justice.

218. The respondent submits that the trial Judge appropriately directed the jury in respect of the burden of proof. Not only was no redirection sought, the primary Judge had correctly explained to the jury the process of drawing inferences, whilst reminding them as to the fact that the Crown bore the burden of proof with respect of all elements for a particular offence and that the appellant had no burden to prove any aspect.

219. The respondent further submits that, whilst the two emails purportedly sent by the deceased in May and September 2014 may have been relevant and admissible, their lack of availability at trial occasioned no miscarriage of justice. On the evidence of Dent at trial, it was open to conclude that the deceased had indeed expressed a desire to end her own life prior to November 2014. The deceased’s vacillation in respect of this point was self-evident on that evidence. The trial Judge gave comprehensive directions in relation to the use of the statements of the deceased to these two witnesses. The appellant had also given a version to police to the effect that the deceased had expressed a desire to end her own life for some significant period but that he was unwilling to assist her. The emails did not affect the consciousness of guilt attributed to the appellant by his lies, as that related to his utterances to police concerning the purchase of the generator. The existence of those two emails could not be said to have caused a jury to entertain a reasonable doubt about the guilt of the appellant, having regard to the evidence that was led at the trial.

220. Finally, the respondent submits that the verdict of the jury was not unreasonable. The evidence placed before the jury provided an overwhelming case to establish beyond reasonable doubt that the appellant had counselled in a calculated and measured approach an emotionally vulnerable woman, who desired to end her own life, to in fact take her own life.

221. As to sentence, the respondent submits that, notwithstanding the appellant’s otherwise good character and lack of criminal history, his conduct in counselling the deceased’s suicide constituted very serious criminal conduct. The added financial desire attributed to the appellant aggravated that offending, as did the prolonged and methodical approach to the counselling of his vulnerable wife.

Conviction appeal

Ground one

222. Relevantly, the trial Judge directed the jury, in respect of Count 2:

“The Crown must then prove that when the accused did the acts of aiding – if you find beyond reasonable doubt that he did, in fact, do any acts of aiding – that he intended that the aiding would in fact aid the deceased to kill herself by using the generator to cause her death by carbon monoxide poisoning. In order to prove the relevant intention, which is element two, the Crown must prove that the accused had a particular state of mind when he did the acts of aiding. If, in fact, you find that he did any acts of aiding. The state of mind that the accused must hold at the time of the aiding relates to the state of mind that the deceased either had at that point or would acquire. You will recall that in order to “kill herself” which is the term in the charge, for the purpose of the charge, the deceased must have done an act which caused her death and she must’ve intended that the act would cause her death.

It is the act by the deceased with that state of mind by the deceased which the accused must have intended to aid. Therefore, the Crown must prove beyond reasonable doubt that when the acts of aiding were done by the accused, the accused knew that the deceased would or may kill herself by using the generator to cause her death by carbon monoxide poisoning. You must then be satisfied beyond reasonable doubt that with that knowledge, the accused then intended that the acts of aiding would assist or help the deceased to kill herself by carbon monoxide poisoning.”

223. The expression “would or may kill herself” in that direction must be viewed in the context of the specific circumstances in dispute. Whilst the autopsy had established that the deceased’s death was by carbon monoxide poisoning, there had been no specific admission to that effect. Accordingly, the jury had been properly directed, prior to this passage, that the jury must be satisfied beyond reasonable doubt that the deceased did kill herself and that aspects of that determination included, not only that the deceased died as a result of an act or acts done by her, but also that any such act did cause her death, in the sense that it was a substantial or significant cause.

224. The trial Judge’s direction to the jury that the Crown must prove beyond reasonable doubt that when the acts of aiding were done by the accused that the accused knew that the deceased would or may kill herself properly recognised that the jury was considering the appellant’s intention to aid in the context of the jury also having to be satisfied that the deceased had done an act which caused her death, intending that the act would cause her death.

225. In that context, the word “may” did not impermissibly broaden the requisite states of mind of the accused or of the deceased. That word did not convey to the jury that a mere possibility of that outcome occurring was sufficient to establish aiding another person to kill himself or herself. It properly directed the jury as to the requisite mind of the aider of an awareness of the probability of the deceased taking her own life by using the generator to cause her death by carbon monoxide poisoning. This ground fails.

Ground two

226. In the course of summarising the rival contentions, the trial Judge specifically referred the jury to defence counsel’s submissions upon the hypothesis of innocence:

“… Mr Wells said to you that he was going to tell you what he described as the hypothesis of innocence. He said to you that if one of the [hypotheses] of innocence was possible, then you would have to acquit. I can tell you, in law, the issue is whether you can exclude an innocent hypothesis beyond reasonable doubt.”

227. That observation correctly framed the onus of proof in respect of the hypothesis of innocence. It informed the jury that the issue was not whether an hypothesis of innocence was possible. The issue was whether the jury could exclude an innocent hypothesis beyond reasonable doubt.

228. The observation must be viewed in the context of the summing up as a whole. It included detailed, specific directions as to the burden and standard of proof. Those directions properly directed the jury as to the drawing of inferences, as to the necessity that guilt is the only rational inference that can be drawn from the circumstances, and that, if there was any reasonable possibility consistent with innocence, it was the jury’s duty to find the appellant not guilty.

229. The trial Judge also specifically and properly directed the jury that the burden of proof rests on the prosecution to prove the guilt of the appellant throughout; that there was no burden on the appellant to establish his innocence; and that the appellant may only be convicted if the prosecution established beyond reasonable doubt that he was guilty of the offence.

230. Having regard to the circumstances in which the trial Judge made the observation, there was no requirement for the trial Judge to further direct the jury that the onus of excluding any hypothesis of innocence rested at all times with the Crown. There is no reasonable basis to conclude that a failure to repeat the earlier specific directions as to the onus of proof resting at all times with the Crown, at this stage of the summing up, deprived the appellant of a fair chance of acquittal. This ground fails.

Ground three

231. In determining an application for a new trial on the ground of fresh evidence, the ultimate question for decision is whether there has been a miscarriage of justice at the trial. As Mason and Deane JJ observed, “The appellate court will conclude that the unavailability of the new evidence at the time of trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial”.⁷⁴

232. The emails purportedly sent by the deceased in May and September 2014 were not in evidence at trial. If they had been in the possession of the appellant prior to trial, they would have been relevant and admissible evidence. However, it does not follow that the unavailability of these emails at trial had a significant and a material impact on the assessment of the credibility and reliability of Lucas and Dent, or of the appellant’s own conduct.

233. A consideration of the evidence of Lucas and Dent, as well as the statements of the appellant to police, amply supported as considerations for the jury on the evidence at trial, that the deceased had vacillated about whether or not she was going to take her own life and had at times expressed to Lucas, Dent and the appellant details of plans to take her own life.

234. Against that background, there is no basis to conclude that the availability of those emails materially impacted upon the jury’s deliberation. There is not a significant possibility that the jury, acting reasonably, would have acquitted the appellant of the counts if these emails had been before it in the trial. This ground fails.

Ground four

235. A determination of this ground requires the Court to undertake an independent assessment of the evidence to determine whether it was open to the jury on the whole of the evidence to be satisfied of the appellant’s guilt beyond reasonable doubt of each count. In doing so, due regard must be given to the role of the jury in the determination of guilt in a criminal trial.⁷⁵

236. In undertaking this task, the Court proceeds on the assumption that evidence necessary for satisfaction by the jury of guilt beyond reasonable doubt was assessed by the jury as credible and reliable and examines the record to see whether either by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence, the Court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.⁷⁶

237. A consideration of the evidence as a whole amply supports a conclusion that it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt in respect of each of Counts 1 and 2.

238. In respect of Count 1, the jury had before it evidence from Lucas, Dent and Winters as to express statements by the deceased that the appellant had, prior to her suicide, spoken to the deceased about her inability to cope with the forthcoming end of the world; that, by taking her own life, she would save herself not only pain but also provide for the appellant, through her life insurance policies; that the appellant had spoken to the deceased about an individual who had committed suicide by gassing and left his partner insurance moneys, which was a blessing; that the appellant had explained to the deceased what he planned to do with the insurance moneys, including showing her the property, Flame Tree; that the appellant had told the deceased that suicide would not be a sin in God’s eyes; that the appellant had only agreed to the deceased travelling to Dent’s residence on the basis that the deceased would take her own life upon her return; and that the deceased felt compelled to comply with his wishes because of the promises she had made to the appellant.

239. The jury also had before it the contents of the appellant’s interview with police, including his initial denial of any knowledge of the purchase of a generator by the deceased, with his subsequent admissions that he had accompanied the deceased to purchase the generator and had assisted the deceased to remove it from its box before placing it back into the motor vehicle. The jury was able to use the lie initially told by the appellant in that interview, that he did not know anything about the generator as consciousness of his guilt of Count 2. The appellant also admitted during the interview that the deceased had said she was intending to take her life using the generator and that he had not taken the deceased’s vehicle to church on that Sunday as he knew the generator was in the boot of that vehicle.

Sentence

245. The sentencing Judge found that the appellant was motivated by money to counsel and to aid the deceased’s suicide. Whilst it was accepted the deceased’s illness and symptoms would have placed the appellant under significant stress and may have contributed generally to his offending behaviour, it was also found that the appellant had not shown any remorse. Further, he had told obvious lies to police.

246. These conclusions were open on the evidence and supported the conclusion that the appellant did not have the benefit of mitigating circumstances such as remorse and cooperation. The sentencing Judge did accept there were other mitigating factors in favour of the appellant. He was 65 years of age at the time of the deceased’s death and 69 years of age at sentence. He had no prior convictions. He had spent a productive life as a highly regarded member of society, notwithstanding that he had had a difficult upbringing.

247. In affixing a head sentence of 10 years’ imprisonment, the sentencing Judge correctly observed that there were no comparable authorities in respect of the count of counselling suicide, although there were some comparable authorities in respect of the count of aiding suicide. The sentencing Judge also properly found that reference to comparable authorities for the offences of manslaughter and attempted murder were ultimately of little assistance.

248. As the sentencing Judge observed, the lack of comparable sentences did not preclude a sentence in accordance with proper sentencing principles. Those principles included the serious nature of the offences; the fact that each Count carried a maximum of life imprisonment; the fact that the deceased was a vulnerable person with difficulties with her physical health, who was already suffering depression; and the fact that the appellant, by his conduct, took advantage of those vulnerabilities in order to persuade her to kill herself and then assisted her to do so.

249. In addition to those matters, the more serious aspect of the offences, counselling suicide, occurred over a period of months. Its seriousness was aggravated by the fact that the appellant had also aided the deceased to kill herself, being the end result of that extended period of counselling.

250. Those latter features properly were described by the sentencing Judge as leading to a conclusion that the appellant’s offences were extremely serious examples of offending under s 311 of the Criminal Code.

251. Having regard to the circumstances that counselling suicide, in the present case, involved taking advantage of the vulnerability of a sick and depressed woman, whilst motivated by the prospect of financial gain, with the end result that the appellant also aided that vulnerable woman to kill herself, general deterrence was properly recognised as a weighty factor.

252. Further, the mitigating factors such as the appellant’s prior good character, work ethic; lack of criminal convictions; his advanced age; and the prospect of facing a considerable period of custody were tempered by the consideration that the appellant has shown absolutely no remorse.

Orders

255. I would order:

(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.

Footnotes

1. R v Jervis [1993] 1 Qd R 643 at 647-648. ↩

2. [1959] Qd R 123. ↩

3. Supra at 128. ↩

4. Supra. ↩

5. [2001] QCA 105. ↩

6. Supra, at [13]. ↩

7. [2003] 2 Qd R 306 at 310 referring to R v Beck [1990] 1 Qd R 30 at 38. ↩

8. [1973] Qd R 211*.* ↩

9. Supra, at 294. Hanger CJ saw nothing wrong with the direction and Skerman J found it unnecessary to deal with the point. Mayberry was cited with approval by Derrington J in R v Beck, supra, at 44. Macrossan CJ and McPherson JA did not deal with the issue. ↩

10. Supra. ↩

11. R v McShane (1978) 66 Cr App R 97 at 103. ↩

12. R v Neilsen [2012] QSC 29; Walmsley v The Queen (2014) 253 A Crim R 441; R v Mott [2012] NZHC 2366; R v Maxwell [2003] VSC 278 and R v (2002) 130 A Crim R 473.