Justins v The Queen - [2010] NSWCCA 242

No judgment structure available for this case.

Reported Decision: 204 A Crim R 315

New South Wales

Court of Criminal Appeal

CITATION: Justins v Regina [2010] NSWCCA 242
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 June 2010

JUDGMENT DATE:
28 October 2010

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 132; Johnson J at 275

DECISION: The appeal should be allowed, the conviction quashed and a new trial ordered.

CATCHWORDS: CRIMINAL LAW - offences against the person - homicide - where the deceased had an illness causing cognitive degeneration - where the deceased consumed a drug given to him by the appellant knowing that by doing so he would die - whether the act causing death was that of the deceased or the appellant - whether the trial judge’s directions on the mental capacity of the deceased were erroneous - whether possessing the capacity to commit suicide requires a person to make an “informed decision to take one’s own life” - CRIMINAL LAW - offences against the person - manslaughter - whether manslaughter by criminal negligence available where a person makes a drug available for another’s consumption intending that death will result - whether failure to make enquiries of a person’s mental capacity capable of constituting a breach of duty causing death - CRIMINAL LAW - procedure - summing up - whether trial miscarried due to trial judge not identifying essential element of the offence in written directions but doing so in oral directions - CRIMINAL LAW - appeal and new trial - Criminal Appeal Act 1912 s 8(1) - whether an acquittal or a new trial should be ordered - WORDS AND PHRASES - “suicide”

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED: Australian Capital Territory v JT [2009] ACTSC 105; (2009) 232 FLR 322
Banks v Goodfellow [1870] LR 5 QB 549
Brightwater Care Group (Inc) v Rossiter [2009] WASC 229
Clift v Schwabe (1846) 3 CB 437
Dyers v R [2002] HCA 45; (2002) 210 CLR 285
Gammage v R (1969) 122 CLR 444
H Limited v J and Anor [2010] SASC 176; (2010) 240 FLR 402
Hong v R [2009] NSWCCA 242
Hunter and New England Area Health Service v A by his Tutor T [2009] NSWSC 761; (2009) 74 NSWLR 88
In Re Davis [1968] 1 QB 72
Nydam v R [1977] VR 430
Pemble v The Queen (1971) 124 CLR 107
People v Beardsley 113 NW 1128 (1907)
R v Downs (1985) 3 NSWLR 312
R v Sam (No. 17) [2009] NSWSC 803
R v Schneidas (No 2) [1981] 2 NSWLR 713
R v Taktak (1988) 14 NSWLR 226
Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290
Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698
Re T (Adult: Refusal of Treatment) [1993] Fam 95
Regina v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269
Reid v The Queen [1980] AC 343
Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519
Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215
The Queen v Crabbe (1985) 156 CLR 464
The Queen v Lavender [2005] HCA 37; (2005) 222 CLR 67
The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Wilson v The Queen (1992) 174 CLR 313

TEXTS CITED: Herring, J. Palser, E. ‘The Duty of Care in Gross Negligence Manslaughter’ [2007] Criminal Law Review 24

PARTIES: Shirley Justins (the Appellant)
The Crown (the Respondent)

FILE NUMBER(S): CCA 2007/3825006

COUNSEL: T A Game SC with K J Edwards (Appellant)
L A Babb SC with S C Dowling (Respondent)

SOLICITORS: Essex Legal (Appellant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2007/3825006

LOWER COURT JUDICIAL OFFICER: Howie J

LOWER COURT DATE OF DECISION: 5 November 2008

LOWER COURT MEDIUM NEUTRAL CITATION: R v Shirley Justins [2008] NSWSC 1194

- 106 -

CCA 2007/00003825006

SPIGELMAN CJ
SIMPSON J
JOHNSON J

Thursday 28 October 2010

Shirley Justins v Regina

FACTS

In March 2006 the appellant provided her de facto partner, Mr Graeme Wylie, with a quantity of the drug pentobarbitone, commonly known as Nembutal. She placed an open bottle of the drug and a glass within his reach. Mr Wylie then poured the Nembutal into the glass and drank it, knowing that by doing so he would die.

Mr Wylie had been diagnosed with Alzheimer's disease in 2003. Psychometric testing performed between 2003 and 2005 had indicated a progressive decline in his cognitive function as a consequence of his illness. The extent of his illness and its impact on his mental capacity was a central issue at trial.

Following his diagnosis, Mr Wylie had attempted suicide on two occasions and had often expressed a desire to die. In 2005, he had applied to an organisation called Dignitas, which, in accordance with the law of Switzerland, provides assistance to people wishing to end their own lives. His application was rejected after Dignitas expressed concerns about his mental capacity.

On 5 May 2008 the appellant was arraigned before Howie J on two charges, each arising from the provision of Nembutal to the deceased.

Count 1 was a charge of murder. Count 2, which was in the alternative to murder, was a charge of aiding and abetting suicide. The appellant pleaded not guilty to both counts. During the course of the trial, the appellant offered to plead guilty to aiding and abetting suicide in full discharge of the indictment. The Crown did not accept that plea.

The jury acquitted the appellant of murder but found her guilty of manslaughter by gross criminal negligence. The trial judge had directed the jury that it could convict for manslaughter if it was satisfied that “the deceased lacked capacity to commit suicide” and the appellant was “criminally negligent about the deceased’s capacity”. His Honour gave detailed directions about what, in law, was meant by the term “capacity”. His Honour provided the jury with a list of five cumulative matters that a person “must be able to do” in order to “make an informed and independent decision”.

The appellant appealed to this Court against her conviction. There was no appeal against sentence.

The Court considered the following questions:

a) Whether the directions given by the trial judge on the “capacity to commit suicide” were erroneous;

b) Whether having the legal capacity to commit suicide requires a person to be able to make an “informed decision to take his own life”;

c) Whether the trial judge’s failure to specify in written directions that the jury must identify an act causing death, but where his Honour identified that requirement in oral directions, caused a mistrial;

d) Whether it was erroneous to direct the jury that it could convict for manslaughter by gross criminal negligence if satisfied that a reasonable person would have made enquiries with respect to the deceased’s capacity;

e) Whether manslaughter was available as an alternative to the murder charge;

f) Whether the Court should enter an acquittal or order a new trial.

HELD
The directions on “capacity”
Per Spigelman CJ, Simpson and Johnson JJ agreeing

Regina v Kennedy (No 2)

In Re Davis

Clift v Schwabe

2 It was erroneous for the trial judge to direct the jury that a person “must be able to do” each of five cumulative matters in order to “make an informed decision” to take their own life. These five matters, which were drawn by his Honour from expert evidence given at trial, transformed factual propositions into legal requirements. [96]-[97] [268] [343] [349]

3 Each of the five cumulative matters was capable of a flexible application that went well beyond determining whether the acts of pouring and ingesting the Nembutal were acts of the deceased or acts of the appellant. [98]-[99] [268] [343]

An “informed decision” to commit suicide
Per Johnson J, Simpson J agreeing

4 The concept of “an informed decision” is not apt to an assessment of the capacity of a person to decide to commit suicide. Nor is it useful to speak of a rational decision for which a good reason may be ascribed or identified. [269] [363]

Rodriguez v British Columbia (Attorney General)

Brightwater Care Group (Inc) v Rossiter

Hunter and New England Area Health Service v A by his Tutor T

Australian Capital Territory v JT

H Limited v J and Anor

Re T (Adult: Refusal of Treatment)

Re C (Adult: Refusal of Treatment)

Stuart v Kirkland-Veenstra

The omission of a legal requirement from the written directions
Per Spigelman CJ, Johnson J agreeing

Nydam v R

Wilson v The Queen

The Queen v Lavender

Per Simpson J (dissenting )

7 The omission of the requirement from the written directions deflected the jury from identifying the act of the appellant said to have caused death. Written directions have a particular force, and are likely to override the recollection jurors have of oral directions. [243] [246]

The directions on the failure of the appellant to make enquiries
Per Spigelman CJ, Johnson J agreeing

R v Taktak

People v Beardsley

Per Simpson J

9 The directions nominated the appellant’s failure to make enquiries as the breach of duty giving rise to the manslaughter charge. These directions were erroneous as the appellant’s omission was incapable of being a cause of death. [244]-[245]

The availability of the charge of manslaughter
Per Spigelman CJ

10 It is open to a new jury to conclude that the appellant did not know that her act was “likely to cause death”, as her subjective knowledge was that a further act would occur before death was caused, namely the deceased’s act of ingestion. As a consequence, the alternative of manslaughter by criminal negligence is open as a verdict on a new trial. [128]-[130]

Per Simpson J

The Queen v Lavender

Pemble v The Queen

The Queen v Crabbe

R v Downs

Nydam v R

Wilson v The Queen

Per Johnson J

12 It is difficult to see a proper conceptual basis upon which manslaughter by criminal negligence could arise on the facts of this case. [340] [368]

Ordering an acquittal or a new trial
Per Spigelman CJ

R v Taufahema

Reid v The Queen

Per Johnson J

14 As the availability of manslaughter is being argued for the first time on appeal, in an unusual factual context and without being raised in a ground of appeal, the Court ought not enter an acquittal and a new trial should be ordered. [340]-[342] [368]-[369]

Dyers v R [2002] HCA 45; (2002) 210 CLR 285, considered.

R v Taufahema [2007] HCA 11; (2007) 228 CLR 232, referred to.

Per Simpson J (dissenting)

15 On the basis of the finding that manslaughter was not available in this case, further prosecution on the count of manslaughter would amount to an abuse of process. The Court should order that an acquittal be entered. [270] [272]-[274]

ORDERS

The appeal should be allowed, the conviction quashed and a new trial ordered.

CCA 2007/00003825006

SPIGELMAN CJ
SIMPSON J
JOHNSON J

Thursday 28 October 2010

Shirley Justins v Regina

Judgment

1 SPIGELMAN CJ: On 5 May 2008 the appellant was jointly arraigned with Ms Caren Jenning before his Honour Justice Howie. The appellant pleaded not guilty to two charges. Count 1 was that, on 22 March 2006, the appellant did murder Mr Graeme Wylie (“the deceased”). Count 2, which was in the alternative to Count 1, was that between 18 March 2006 and 22 March 2006, the appellant did aid and abet the suicide of Mr Graeme Wylie. During the course of the trial, the appellant offered to plead guilty to the charge of aiding and abetting suicide. That plea was not accepted by the Crown in full discharge of the indictment. The jury found the appellant guilty of manslaughter by gross criminal negligence, the Crown having sought manslaughter as an alternative verdict during the course of the trial and his Honour having directed the jury on the availability of such a verdict.

2 Ms Caren Jenning was convicted by the same jury of being an accessory before the fact to manslaughter.

3 The appellant was sentenced by his Honour Justice Howie to a non-parole period of 22 months with a balance of term of 8 months, to be served by way of periodic detention. Ms Jenning committed suicide after she was convicted and before she was sentenced.

4 Ms Justins appeals against her conviction. There is no appeal against sentence.

5 The facts leading to the death were not in issue. The deceased died on 22 March 2006 when he consumed a fatal dose of the substance known as Nembutal, namely the drug pentobarbitone, in liquid form. The appellant gave the deceased the Nembutal to drink because she believed that he wanted to take his own life. The drug had been obtained by Ms Jenning in Mexico in March 2006. She had given it to Ms Justins on 18 March 2006, on her return to Australia.

6 The appellant’s evidence was that, on the morning of the deceased’s death, she prepared the deceased a cup of water with a slice of lemon and opened the bottle of Nembutal. She placed the bottle of Nembutal next to a glass on the table.

7 Ms Justins said to the deceased “This will relieve your pain, Graeme. If you drink this you will die”. The deceased said “Yes” and poured the Nembutal into a glass. Ms Justins said “I want to come too” and he replied “No, I’ve got to do this alone”. He then drank the glass of Nembutal. Ms Justins’ evidence was that the deceased lost consciousness almost immediately. The appellant then left the premises, returning later in the day to find that the deceased was dead.

Background Facts

8 The deceased was aged 71 at the time of his death. He had been married twice prior to commencing a relationship with the appellant. He had been in a relationship with Ms Justins for some 20 years, having met her around 1980. The appellant had moved into the deceased’s home around 1989, and had lived there since that time as his de facto.

9 The deceased was diagnosed with Alzheimer’s disease in March 2003 and, shortly after his diagnosis, had discussed cutting his wrists or shooting himself. From that time, on the evidence, he often expressed a desire to die.

10 Between his diagnosis in March 2003 and August 2005, the deceased was treated at the Cognitive Disorders Clinic at Concord Hospital. Testing results demonstrated a progressive decline in his cognitive abilities.

11 In September 2005 the deceased attempted suicide by cutting both his wrists whilst Ms Justins was out of the house. After this incident, he was treated by Dr Omparkash Gupta, a general practitioner, for his injuries.

12 Later, in September 2005, the deceased expressed an interest in travelling to Switzerland in order to end his life with the assistance of the organisation Dignitas. In accordance with Swiss law, Dignitas aids lawfully assisted and supervised people to take their own lives. Ms Jenning was a close friend of the deceased and an office holder of the organisation Exit International. That organisation was a not for profit group which advocated legal euthanasia and assisted suicide. It also provided information to its members about the law in Australia and about organisations such as Dignitas.

13 In October 2005 Ms Jenning and Ms Justins gathered material for an application to Dignitas. On receiving the application, Dignitas conducted its enquiries, including receiving a report in November 2005 by Dr Phillip Nitschke, who was also involved in Exit International. In his report to Dignitas, Dr Nitschke noted the deceased’s Alzheimer’s disease and his cognitive problems, including the fact that the deceased was unable to remember his date of birth or if he had any children, which he did have.

14 On 9 December 2005 Dignitas rejected the deceased’s application for assistance. It noted that one of the issues it needed to consider was “whether a patient suffering from Alzheimer’s still has sufficient capacity of judgment or not and whether this patient is able to sufficiently express his wish …”.

15 The letter stated that the material before them meant that:

“… it cannot be established with certainty to which extend [sic] your current abilities would comply with legal and general requirements to fully carry the responsibility of an accompanied suicide.”

16 In February 2006 the deceased attempted suicide again. He locked himself in a shed and attempted to poison himself with the fumes of a lawnmower, which he had bought for the sole purpose of killing himself. Ms Justins was aware of the planned suicide attempt and absented herself from the house, at the request of the deceased.

17 In March 2006 Ms Jenning travelled to Mexico for the purpose of obtaining the drug Nembutal. It was not available in Australia. That drug was promoted in the literature of Exit International as an effective means of ending life. The obtaining of the drug from abroad was known as “The Mexican Option” to the appellant and Ms Jenning. On her return, Ms Jenning gave the drug to Ms Justins.

18 In March 2006 the deceased and Ms Justins visited the deceased’s solicitor for the purpose of changing his will. In the course of this process, the deceased obtained a certificate from Dr Gupta stating that the deceased was “quite capable of making his own decisions and understanding the nature of those decisions”. On 15 March 2006 the deceased signed his new will, which left the overwhelming bulk of his estate to Ms Justins, thereby reducing substantially the legacy to his daughters in favour of the appellant.

19 On 19 March 2006 Ms Jenning had a dinner with the deceased and Ms Justins. She reminded them that, because of the foul taste of Nembutal, it was necessary to take an anti-nausea drug some days before consuming the Nembutal in order to ensure that the drug was swallowed without vomiting. Between 20 March 2006 and the date of his death on 22 March, the deceased took Maxolon, an anti-nausea drug, twice a day.

20 It was accepted at the trial that, although the indictment only charged murder and, in the alternative, aiding and abetting suicide, it was implicit in the indictment that the alternative of manslaughter was available.

21 The principal issues in this appeal arise from the trial judge’s summing-up, during which his Honour sought to crystallise the legal elements of the three relevant offences in accordance with the issues that arose in the appeal. I note that, during the course of the appeal, complaint was made about his Honour’s failure to direct the jury in accordance with the Criminal Trial Courts Bench Book. That is not a basis for an appeal. (See Hong v R [2009] NSWCCA 242 at [34]-[35].) His Honour correctly sought to make the directions required by law meaningful in terms of the issues that had arisen in the case.

22 Specifically, his Honour focused his directions on the capacity of the deceased to make an informed decision to take his own life. This was the critical issue in the case because of the fact that the conduct of the accused was to make the Nembutal available to the deceased, but not to administer it. On the Crown case, the deceased knew that consuming the drug would be fatal but he did not have the capacity to make an informed decision to take his own life.

The Written Directions

23 His Honour gave the jury two documents which it is appropriate to set out in full. The first was on the “Available Verdicts” against the appellant. The second, headed “The Accused Justins”, was a document which set out the elements of the offences alleged against her.

24 The first document was as follows:

“AVAILABLE VERDICTS

Shirley Justins

deceased lacked capacity

(a) if the Crown has proved beyond reasonable doubt that Shirley Justins knew that the deceased lacked capacity

guilty of murder

OR

criminally negligent about the deceased’s capacity

guilty of manslaughter

OR

not satisfied beyond a reasonable doubt that Justins either knew that the deceased lacked capacity or that she was criminally negligent

not guilty.

not proven beyond reasonable doubt that the deceased lacked capacity

then if:

i. the deceased took his own life because he had capacity to commit suicide

AND

ii. Justins intentionally aided or abetted the deceased in taking his own life

aiding and abetting a suicide.”

25 The second document was as follows:

“THE ACCUSED JUSTINS

MURDER

the act of the accused

In order to prove that it was the act of the accused that caused the death of the deceased, the Crown must prove beyond reasonable doubt that

(1) the deceased lacked the mental capacity to make an informed decision to take his own life

and

knew

both

If the Crown has not proved both (1) and (2), the accused is not guilty of murder.

Capacity to commit suicide

To have the legal capacity to commit suicide the person must be able to make an informed and independent decision to take his own life. He must be able to do the following:

1. know the extent of his illness and its prognosis;

2. understand the nature of the act of suicide and its consequences;

3. comprehend the benefits and disadvantages of the alternatives (life and death);

4. be able to weigh the benefits and advantages and decide between them;

5. be able to communicate that decision.

It must be his independent decision, even though taken with the advice of others.

MANSLAUGHTER

all

1. that the deceased lacked the capacity to make an informed decision to take his own life;

2. that the accused had a duty of care to the deceased at the time of this death.

3. that the standard of care owed by the accused to the deceased was that of a reasonable person in the position of the accused;

4. that a reasonable person in the position of the accused would have been aware that the deceased lacked the capacity to make an informed decision to take his own life or would have made inquiries to determine whether the deceased had that capacity before providing him with the Nembutal;

5. that the failure of the accused to make such inquiries was a breach of the duty she owned to the accused;

6. that breach of duty was so serious as to amount to a criminal offence warranting punishment.

Aiding and abetting suicide

The Crown has to prove:

1. That the deceased committed suicide, that is took his own life;

2. the Crown has to prove beyond reasonable doubt that the accused intentionally encouraged, aided or assisted the deceased to take his own life.

Here the act relied upon by the Crown was providing the deceased with the Nembutal knowing that he was going to drink it to end his life.”

Oral Directions

26 His Honour had first given the jury the documents set out in the two preceding paragraphs immediately after the two accused were rearraigned on a fresh indictment. This occurred just before counsel addressed on the issue. In what was, in substance, a preliminary summing up before addresses, his Honour identified for the jury the alternative verdict of manslaughter available to them. His Honour referred to the document set out at [25] as identifying the “essential elements of all the essential facts that the Crown has to prove before you can find the accused guilty of any of the charges set out in the indictment”.

27 With respect to the charge of murder his Honour said:

“This charge is a little curious in this particular factual case because the evidence is that the accused, that’s Justins, gave Mr Wylie the bottle containing the Nembutal in a glass; and that he poured the Nembutal into the glass and then drank from the glass. Now, you may think that it was his act causing him death. Well, yes and no. If you find beyond reasonable doubt that he lacked the capacity to make an informed decision to take his own life and if you found that the accused knew that he did not have that capacity, then, in legal terms, it wasn’t his act, it was her act.”

28 His Honour then referred to the document at [25], particularly with respect to the subheading “Capacity to Commit Suicide” and said:

“Now, you will see there that I’ve set out to you the capacity to commit suicide. I won’t go through that but, if you remember, that was very much the evidence of the psychiatrist about capacity. Those are the things a person has to know. It’s not a checklist. He doesn’t have to get the Nembutal and sit there and think ‘Hmm’, tick off the boxes. It’s very much like the testamentary capacity, again, a person doesn’t sit there and tick off the boxes but what it is is if the person is able to bring an informed decision as to whether or not to take his own life by taking these matters into account.

You will remember this is probably at the crux of this case, and we will talk about that, as counsel will talk about that, later on, but I’m not intending at this stage to direct you on the evidence about that but that’s the legal requirement for capacity to commit suicide. It’s like a legal requirement for somebody to be able to consent to a surgical procedure. It’s similar to a person being able to have the capacity to make a Will; and you will remember the psychiatrist gave you evidence about capacities differing, depending upon the nature of the act. She said ‘it was act driven’, if you like, or situational in that you can’t decide somebody’s capacity without actually deciding what it is they’re deciding.

All right, that’s murder. Manslaughter it a little bit more complicated.”

29 His Honour went on to refer to each of the matters at 4 and 5 in the direction under the heading Manslaughter, set out at [25] above.

30 With respect to the proposition identified as 4 his Honour said:

“A reasonable person, in the position of the accused … would have known … that the deceased lacked the capacity – that is a reasonable person would have known that …

When we get into manslaughter we get into reasonableness of conduct; that’s why it’s not murder. We don’t focus so much on Ms Justins’ state of mind; that’s what murder is all about. Here we focus upon a standard that the community expects the way people to behave and, if you breach that standard of care, and it’s sufficiently serious and it results in death, then you’re liable to manslaughter and not murder.”

31 With respect to the proposition identified as 5, his Honour stated:

“The Crown says that the failure to make enquiries was a breach of that duty.”

32 In the final oral directions to the jury, his Honour first dealt with the count of murder. In the course of doing so his Honour said:

“… the real issue here is whether it is Ms Justins’ act that killed the deceased.”

33 His Honour went on to say:

“So the issue distils here into whether or not he had the capacity to know what he was doing when he drank the drink; in other words, whether he had the capacity to make an informed independent decision whether to drink the Nembutal and die. And that is why this case has concentrated on capacity. Because, if the Crown has not satisfied you beyond reasonable doubt that he lacked that capacity, then, in law, the drinking of the Nembutal is his act, and not Ms Justins’ act, and, if it is his act, then she did not murder him.

So that is why it is fundamental, both to the offence of murder and the offence of manslaughter, that the Crown prove beyond reasonable doubt that the deceased, Mr Wylie, lacked the capacity to make a judgment as to whether or not to drink the Nembutal and cause his death.”

34 His Honour went on to refer, by way of analogy, to decisions made by a young child or a person who was drunk and added:

“So that there are analogies, in the everyday world, of people who can do an act, apparently consciously, apparently intending the consequences, yet lacking the capacity to make an informed decision as to whether to commit that act or not and to bring about those consequences or not.

So in the end the question here, on the first step, on the question of capacity, is whether, at the time he drank the Nembutal, that the deceased was so mentally infirm by dementia that he could no longer make an informed decision to die.”

35 His Honour also referred to testamentary capacity by way of example. There was evidence before the Court about the circumstances in which the deceased made his new will.

36 His Honour went on to say:

“So we get down to this rather odd decision that you have to make: Whether his capacity, his ability to make judgments, had gone so far infirm that he wasn’t able to make a judgment about whether or not to end his life.

… [T]he more important the function, the more complex the function, this is what the psychiatrists are saying to you and, as I say, it seems to be a matter of common sense, the more important is this capacity to perform complex decisions, to be able to make complex judgments about the decision that you are making, the act that you are going to take.”

37 His Honour again referred to his analogy with intoxication and young children, adding a reference to ill and drug affected persons. He said in such circumstances, “the law intervenes and says ‘We will take responsibility away from you’”.

38 His Honour added:

“… that is what this case is primarily about and that is why fundamental to the charge of murder and manslaughter is your decision on whether or not Graham Wylie lacked capacity to make that decision. The Crown has to prove to you, and prove beyond reasonable doubt, that he did not.”

39 His Honour went on to direct the jury with respect to the alternative of manslaughter. In this respect his Honour said:

“… gross criminal negligence is not about acting with knowledge – it is about acting when you ought to have had knowledge, when a reasonable person ought to have had knowledge, when a reasonable person in that situation ought to have had knowledge. And that is why it is important for you, in manslaughter, to make a community assessment of what a reasonable person ought to have done in that particular situation, given the knowledge that you found that she had.”

40 His Honour went on to instruct the jury with respect to the concept of a duty of care and breach of that duty. He referred to the Crown case that the appellant owed a duty by reason of the vulnerability of the deceased and added:

“What it means is that you have a duty to ensure, as far as is necessary, that is as far as is reasonably necessary, to ensure that the vulnerable person does not harm himself. The extent of the duty will, of course, depend upon the vulnerability of the person and what is reasonable in all the circumstances to protect that person.

Here, the Crown says, you would find that the deceased did not have the capacity to make an independent informed decision whether to take his own life. That has to be found for manslaughter, because, if he has the capacity, then it is suicide. If he has the capacity to make an informed view as to whether to take his own life, then it is his act, in taking his own life; and, if he had that informed capacity, then nobody is suggesting that Ms Justins was in any way negligent in providing the drink to him, the Nembutal to him.

So, again, fundamental to this charge is that Mr Wylie did not have capacity. It is a different reason for it in murder than it is for manslaughter but it is fundamental in each case.”

41 His Honour directed the jury with respect to the alternative way in which the Crown put its case, based on the breach of a duty to make enquiries. His Honour said:

“The Crown argues that a reasonable person, in the position of Ms Justins, with the duty of care owed to Mr Wylie and, knowing of the level of his mental disabilities at the time of his death, would have made inquiries to ensure that he did have the mental capacity necessary to make the decision whether or not to drink the Nembutal and thereby to end his life. Let me repeat that to you: the Crown’s case is that a reasonable person, in the position of Ms Justins, with her duty of care that she owed to Mr Wylie, and, knowing of the level of his mental disabilities at the time of his death, that she knew, would have made inquiries to ensure that he did have the mental capacity necessary to make the decision whether or not to take the Nembutal and end his own life.

Now, it should be obvious that for this offence it is not necessary for the Crown to prove that Ms Justins knew that he did not have the capacity. That is an issue for murder. It is not an issue for manslaughter.

It does not matter for the offence of manslaughter whether she was simply disregarding his mental state in seeking to carry out what she believed was his wishes or what she believed was best for him. It is enough that a reasonable person in her position, that is knowing what she knew about his mental capacity, would have made inquiries to ensure that he had the capacity to make a decision whether or not to take his own life before she provided him with the means of doing so.”

42 His Honour referred the jury to the document set out at [25] above, specifically with respect to the section headed “Capacity to Commit Suicide”. His Honour said:

“Here, if you have got that document with you and you have got the five points relating to capacity, the matter that’s really at issue is 3 and 4. The Crown does not, for example, suggest that he did not understand the nature of death, or he did not understand that if he drank the Nembutal that he would die; the real question here is whether he had the capacity to make an informed, independent judgment about it, and chiefly the Crown is saying that the problem with capacity was in 3 and 4.”

43 To reiterate Points (3) and (4), to which his Honour drew attention, a person must be able to:

“3. Comprehend the benefits and disadvantages of the alternatives (life and death);

4. Be able to weigh the benefits and advantages and decide between them.”

44 The matter to which his Honour referred as not being in dispute appears to me to be that identified as Point (2), which he paraphrased. To repeat, Points (1) and (2) were:

“1. know the extent of his illness and its prognosis;

2. understand the nature of the act of suicide and its consequences.”

45 It appears to me that his Honour made no reference to Point (1). Nor did he refer in any way to Point (5), which was:

“5. be able to communicate that decision.”

46 His Honour also addressed the jury on what appears in the document set out at [25] under the subheading “Manslaughter”:

“If you look at note 4 under “Manslaughter”, she can be negligent in two ways: One is that a reasonable person in her position, knowing what she knew about Mr Wylie, knowing what she was aware of in relation to his capacity, or lack of capacity, would have realised that he did lack capacity. It is again an objective test. A reasonable person in that situation would have realised, even though she may not have done so, that the deceased lacked capacity, so she was negligent in that way.

Or the other way is that she was in this duty of care and she was negligent in her failing in her duty of care to Mr Wylie by not making enquiries as to whether or not he did have capacity. So, there are the two ways that the Crown says that she was negligent.”

47 His Honour went on to say:

“This is the difference between simple negligence that gives rise to damages between persons in the community, or even negligent driving, which is a low standard of lack of care. This is a serious criminal offence of manslaughter, and so you have got to make an assessment, make an evaluation, again using your common sense, your understanding of people, and again what the community requires of people in given situations, and ask yourself: Is this so serious a breach of her duty of care? Is there such a likelihood of serious injury or death resulting from that breach? Was that breach so far short of what you would expect of somebody in that position to have done in relation to Mr Wylie?”

48 The jury asked a question with respect to the case against Ms Jenning, who had been arraigned on an accessorial charge. In the course of answering this question, his Honour made further reference to the case against Ms Justins. He said:

“The reasonable man test fits into her conduct, her act; in other words, it was her provision of the Nembutal to the deceased, in breach of her duty of care that she owed him in that she was negligent, grossly negligent, in relation to providing a person with the Nembutal when a reasonable person would have known that he lacked capacity; or that a reasonable person would have made enquiries as to whether he lacked capacity.”

49 Counsel for Ms Justins noted that in this passage his Honour had omitted to include a reference to “a reasonable person knowing what she knew”. Subsequently, his Honour told the jury:

“I was not intending in giving you those directions to give you a comprehensive direction in relation to negligence in relation to Ms Justins. Remember what I said to you, that a reasonable person, in the case of negligence by Ms Justins, is a reasonable person knowing everything that Ms Justins knew, not what she ought to have known; it is in the terms of her knowledge.”

The Capacity Direction

50 The central issue in this case was whether or not the act of the deceased, in pouring the Nembutal into the glass and drinking it, was his act. The jury had to be satisfied beyond reasonable doubt that it was not. The only issue in the trial in this regard was his mental capacity.

51 This appeal focuses on that portion of the written direction, set out at [25] above, which appears under the heading “Capacity to commit suicide”. That section commences with a statement, to which no objection is taken, that in order “to have the legal capacity to commit suicide the person must be able to make an informed and independent decision to take his own life”. Nor is objection directed to the ultimate statement under this subheading: “It must be his independent decision, even though taken with the advice of others”.

52 The appellant’s principal complaints are directed to Points (1) to (5) which are introduced by the words: “He must be able to do the following: … ”. These five propositions were distilled by his Honour from the expert evidence in the case. It is not necessary to set out that evidence. The appeal turns on the direction.

53 It appears from the structure of the direction, as expounded in oral directions, that if the deceased was deficient in any one of these matters, then the jury should conclude that the deceased did not have the requisite mental capacity to commit suicide. As a finding that the deceased did not have the mental capacity to commit suicide was a requirement for both the charge of murder and of manslaughter, the jury, in returning the verdict that it did, must have been satisfied that at least one of these elements was missing.

54 The fact that the absence of only one of these matters had to be established by the Crown is affirmed by the oral direction that his Honour gave, which I have set out at [42] above, but which it is appropriate to repeat:

“Here, if you have got that document with you and you have got the five points relating to capacity, the matter that’s really at issue is 3 and 4. The Crown does not, for example, suggest that he did not understand the nature of death, or he did not understand that if he drank the Nembutal that he would die; the real question here is whether he had the capacity to make an informed, independent judgment about it, and chiefly the Crown is saying that the problem with capacity was in 3 and 4.”

55 During the course of his Honour’s summing up, the Crown prosecutor made certain observations, described by Mr T Game SC, who appeared for the appellant in these proceedings, as a “concession”. These observations were the basis for his Honour taking away Points (1) and (2) in the “Capacity to commit suicide” written directions. I do not understand why Point (5) was not referred to, but it played no role in the appeal.

56 The Crown prosecutor accepted three propositions that were put to him by his Honour:

“There is no suggestion that he did not understand life and death.”

“There is no dispute that he did not understand that if he drank the Nembutal that he would die.”

“The dispute is only about whether he had the capacity to make an informed judgment.”

57 These propositions appear to me to relate to Point (2). However, it was common ground that only Points (3) and (4) were to be decided by the jury.

58 The existence of a written direction of this character in the jury room could well have confused some jurors with respect to Points (1), (2) and (5). It would have been preferable if (1), (2) and (5) had been struck out of the document. An oral direction identifying the matter that is “really at issue” and what it is that the Crown is “chiefly … saying that the problem with capacity was”, is not of equivalent force to striking the matters out of the document. However, no complaint is made in this regard.

59 The Crown was, as his Honour clearly directed, obliged to establish beyond reasonable doubt that the deceased did not have the capacity to take his own life. The jury was, in effect, directed that Points (1), (2) and (5) were not in issue. As I understand this direction it is to the effect that the Crown accepted that it could not prove the absence of each of Points (1), (2) and (5) beyond reasonable doubt. The matter went to the jury on the basis that it was essential for the Crown to prove the absence of either (3) or (4), and to do so beyond reasonable doubt.

Ground 2

60 It is convenient to deal first with Ground 2, which is:

“The trial miscarried because the jury were not instructed that they needed to find beyond reasonable doubt that the act of the accused caused the death of the deceased.”

61 This ground is based on a distinction made in the written directions, set out at [25] above, between the murder and the manslaughter charges.

62 In the direction on murder, the written direction commenced:

the act of the accused

63 There is no equivalent reference in the written direction with respect to manslaughter. It is the absence of such a reference that is the basis for Ground 2.

64 It is clear that in order to establish manslaughter by criminal negligence the prosecution must show that the act which caused the death was the act of the accused. (See Nydam v R [1977] VR 430 at 445, which contains the standard direction as frequently approved. See Wilson v The Queen (1992) 174 CLR 313 at 333; The Queen v Lavender [2005] HCA 37; (2005) 222 CLR 67 especially at [17], [60] and [72]).

65 In this respect, the central issue, as I mentioned at [50] above, is whether the act of the appellant, in making the Nembutal available, caused the death of the deceased or whether, in pouring and consuming the Nembutal, the deceased brought about his own death through his own act. As the House of Lords said in Regina v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269 at [15], in a case dealing with manslaughter by unlawful and dangerous act:

“… causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question arises.”

66 In that case, the House of Lords was asked to consider whether manslaughter was available where the appellant had prepared a dose of heroin and given the readied syringe to another, who had then injected himself with the heroin and died as a result. The question certified by the Court of Appeal for the opinion of the House of Lords was (at [2]):

“When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death?”

67 The answer that the House of Lords gave to this question at [25] was:

“In the case of a fully-informed and responsible adult, never.”

68 Although this answer was given in the context of a charge of manslaughter by an unlawful and dangerous act, the same approach applies to manslaughter by criminal negligence in circumstances such as arise in the present case. It is not necessary for present purposes to say that the answer is similarly “never”. However, in this case, his Honour’s directions on the need for an informed and independent decision were equivalent to what the House of Lords described in Kennedy as “a fully-informed and responsible adult”. The issue posed for the consideration of the jury was whether Mr Wylie was capable of making “an informed and independent decision”, such as to render the act of consuming the Nembutal his act, or whether, by reason of his degenerative illness, he lacked the mental capacity to perform the act which caused his death and that as a consequence the act causing death was not his but that of the appellant.

69 His Honour’s directions made it quite clear that, if the jury found that the deceased’s decision to take the Nembutal was “an informed and independent decision” of the deceased then the death was not caused by any act of the appellant. The Crown had to disprove that it was such a decision and to do so beyond reasonable doubt.

70 His Honour articulated this proposition clearly on a number of occasions. To reiterate the passage set out at [40] above:

That has to be found for manslaughter

then it is his act, in taking his own life

71 The jury could have been in no doubt that the critical issue in the case was the act causing death. The direct cause was the ingestion of Nembutal. The Crown did not suggest that the deceased was forced or tricked into consuming the drug. It was made available to him by the accused. He drank it.

72 I repeat his Honour’s observation set out at [32]-[33] above:

“… [T]he real issue here is whether it is Ms Justin’s act that killed the deceased.”

And

“… [I]f the Crown has not satisfied you beyond reasonable doubt that he lacked that capacity, then, in law, the drinking of the Nembutal is his act, and not Ms Justins’ act, and, if it is his act, then she did not murder him.

So that is why it is fundamental, both to the offence of murder and the offence of manslaughter, that the Crown prove beyond reasonable doubt that the deceased, Mr Wylie, lacked the capacity to make a judgment as to whether or not to drink the Nembutal and cause his death.”

73 In my opinion, there was an oral direction to the effect that the jury had to find, beyond reasonable doubt, that an act of the accused caused the death of the deceased. This ground of appeal should be rejected.

Grounds 1 and 7

74 It is convenient to treat Grounds 1 and 7 together.

75 Ground 1 is:

“The trial miscarried because the concept of ‘capacity to commit suicide’ was elevated to an element of the offence of manslaughter contrary to law.”

76 Ground 7 is:

“The trial miscarried because the law relating to the ‘capacity to commit suicide’ was erroneously formulated and, as a result, the directions in relation to each of the charges of murder, manslaughter and ‘aid and abet suicide’ were erroneously formulated.”

77 Both grounds focus on the section of the document set out at [25] above that appears under the heading “Capacity to commit suicide”, which I have further discussed at [53] to [59] above. Reliance is also placed on the manner in which his Honour elaborated upon this direction.

78 It is clear from the written directions set out in [24] and [25] above, as elaborated in oral directions, that his Honour placed the concept of capacity to commit suicide at the centre of his directions for both murder and manslaughter. The structure of the directions was that, if the deceased had the capacity to commit suicide, then neither murder nor manslaughter could be established. For the reasons set out with respect to Ground 2, that was appropriate.

79 This Court was referred to case law that defines suicide in both contractual and criminal contexts. Save with respect to the alternative charge of “aiding and abetting” suicide, the legal concept of “suicide” was not directly in issue. Specifically, it was not a legal element of the count of murder or of the count of manslaughter.

80 With respect to the alternative offence in the indictment, aiding and abetting suicide, the direction under Available Verdicts, set out at [24] above, expressly stated that it arose if the Crown had not proved beyond reasonable doubt that the deceased lacked the capacity to commit suicide. The direction identified an essential element of that offence to be:

“(i) The deceased took his own life because he had capacity to commit suicide.”

81 Although the terminology of “suicide” appears throughout the written directions, I do not understand Howie J to have been using the term in a legal sense, save with respect to the alternative charge. His Honour was directing attention to the fact that the final act of pouring and ingesting the substance was an act of the deceased.

82 The references to suicide in the documents were, without objection at trial, accepted as pertinent terminology with respect to both the murder and manslaughter counts. Although not clearly apt, the focus of both the written and oral directions was on the concept of “capacity”. I do not think this terminological elision was of any significance of itself. The word “suicide” was clearly used as encompassing the taking by a person of his or her own life.

83 The terminology of suicide, relevantly with respect to the crime of manslaughter, did not, however, involve a matter of law. The issue of whether the deceased had the mental capacity to take his own life was a question of fact for the jury to decide on the whole of the evidence.

84 Insofar as the appellant’s complaint under Ground 1 is that his Honour omitted to identify the elements of manslaughter in the legal terms that are usually provided to the jury, I would reject the submission. A trial judge does not always have to provide a jury with a set of propositions expressed in abstract legal terms. In an appropriate case, the judge may identify with precision the actual manner in which those legal elements arise on the particular issues in the specific trial. If, as was the case here, the legal elements of an offence are capable of reduction to terminology that accurately reflects the manner in which those elements manifest themselves in the particular case, then no objection can be sustained if the trial judge instructs the jury in those terms.

85 However, the principal focus of the appellant’s submission under Ground 1 is the section of the document set out at [25] above which appears under the heading “Capacity to commit suicide”. Each part of this direction constituted, the appellant contended, a definition of “capacity”. In that manner, it elevated the proposition of “capacity to commit suicide” to a legal test and an element of the manslaughter and murder offences.

86 The appellant further contended in her written submissions:

“Instead of posing a general test to the jury such as ‘did the deceased have the capacity to make an independent and informed decision to take his own life’ the jury were provided with a detailed description of the ‘capacity to commit suicide’ ...”

87 The submissions went on to state:

“When the jury were directed in respect of manslaughter there was … no delineation between the factual and legal issues relating to capacity … ”

88 No objection was taken to the matters now complained of at trial. Rule 4 of the Criminal Appeal Rules applies. This matter was so fundamental to the structure of his Honour’s directions that I would grant leave.

89 With respect to Ground 7, the appellant maintained a submission which she had made at trial, namely, that his Honour erred in going beyond a direction, on the issue of “capacity”, that the Crown had to disprove that the death of the deceased was “the intentional act of (the deceased) knowing that the probable consequence of the act was death”.

90 The point taken at trial, and repeated on this appeal, was that no more was appropriate by way of direction to the jury on the issue of capacity than the statement set out in the case of In Re Davis [1968] 1 QB 72, namely, an “intentional act of the party knowing that the probable consequences of the act is death” (Davis at 82, drawing on the reasoning of Rolfe B in Clift v Schwabe (1846) 3 CB 437 at 464). Although, in the latter case, the issue arose with respect to the interpretation of words in a contract, it reflects the natural and ordinary meaning of the word.

91 His Honour’s formulation, as expressed in the first and last sentences of this part of the written direction, was entirely appropriate. He said:

“To have the legal capacity to commit suicide the person must be able to make an informed and independent decision to take his own life.

…

It must be his independent decision, even though taken with the advice of others.”

92 Although the word “legal” before the word “capacity” was not, in my opinion, advisable, a direction limited to those terms would have raised the critical issue for the jury’s consideration. It would then have been a matter for the jury to assess the evidence about the conduct of the deceased and the expert evidence about that conduct. His Honour’s directions on “legal capacity”, to which I have referred at [34] to [37] above, were appropriate by way of analogy. However, it should have been made clear to the jury that “capacity” was not a legal term. The jury had to be satisfied of such capacity in the natural and ordinary meaning of the word. The jury had to assess the whole of the evidence about “capacity” in order to determine whether or not the act causing death was the act of the deceased, or that of the accused.

93 The basic thrust of the appellant’s submissions on Grounds 1 and 7 was that it was impermissible to direct the jury in the terms of Points (3) and (4). The relevant test for determining whether or not the act causing death was the act of the appellant was set too low, because all that the Crown had to prove beyond reasonable doubt was that the deceased could not “comprehend the benefits and disadvantages of the alternatives (life and death)” or that he was not “able to weigh the benefits and advantages and decide between them”. If it established either, in addition to the state of mind of the accused, guilt was established.

94 In my opinion, Howie J correctly identified the issue in terms of whether or not the act causing death was the act of the deceased. Furthermore, it was appropriate to characterise that issue as turning on whether or not the deceased had the requisite mental capacity. However his Honour went further and identified a list of matters which were required to be present in order for the deceased to possess the requisite mental capacity. This is where his Honour fell into error.

95 It was, in my opinion, wrong to specify the five cumulative matters as what a person “must be able to do” in order to “make an informed decision”. In the event, the issue was narrowed to Points (3) and (4) – the comprehension of benefits and disadvantages of life and death and the capacity to weigh those benefits and disadvantages. The matter went to the jury on the basis that if the Crown could disprove beyond reasonable doubt either of Points (3) or (4), then an essential fact for the charge of manslaughter had been made out, ie, the lack of capacity.

96 However, whether or not either was essential was a matter for the jury. It was open to the jury to accept or reject the expert evidence from which these propositions were derived. By transforming these factual propositions into directions, his Honour erred.

97 The directions, as written and as explained orally, did elevate the issue of ‘capacity’ into a legal element which is probably best understood as satisfying the causation element. As I said at [65]-[68] above, whether or not the deceased had the mental capacity to end his life was the central issue with respect to determining which act killed the deceased. However, this was a matter of fact for the jury, not a matter of law.

98 Furthermore, the direction introduced concepts capable of flexible application that went well beyond, in my opinion, what could reasonably have been determined to deprive the act of pouring and ingesting the Nembutal of the character of being an act of the deceased. The act of pouring and ingesting the substance are not necessarily deprived of that character if the Crown can prove beyond reasonable doubt that the deceased did not comprehend the benefits and disadvantages of the alternatives of life or death nor, perhaps even more clearly, if it established that he was not able to weigh the benefits and disadvantages of life and death and decide between them. Neither of these matters, even if established beyond reasonable doubt, would necessarily determine what was the act that caused death.

99 My conclusion is reinforced by the elasticity of the language in which Points (3) and (4) are expressed. There is a wide range of possibilities as to the strength and force of a person’s ‘comprehension’ of the “benefits and disadvantages” of the alternatives “life and death”. There is a similarly wide range with respect to the capacity of a person “to weigh the benefits and disadvantages and decide between them”. Each of these propositions appears to me to cover such a broad range of mental capacity that the direction was liable to confuse the jury.

100 Evidence of the deceased’s inability in these respects was clearly relevant to the jury’s determination of capacity. So was the expert evidence. However the directions elevated the expert evidence into legal propositions, as distinct from matters of fact for the jury to assess when determining the issue of capacity. In so directing the jury, in my opinion, his Honour erred.

101 Grounds 1 and 7 should be upheld.

Ground 8

102 Ground 8 is:

“The trial miscarried because the jury were inadequately and erroneously directed in relation that the elements of manslaughter by gross criminal negligence.”

103 A number of submissions were put under this ground. Of particular concern is the direction with respect to the alternative basis on which the criminal negligence could be found, namely the failure to make enquires.

104 To repeat the proposition identified as 4, which appears under the subheading “Manslaughter” in the document headed “The Accused Justins” set out at [25] above:

“4. That a reasonable person in the position of the accused would have been aware that the deceased lacked the capacity to make an informed decision to take his own life or would have made inquiries to determine whether the deceased had that capacity before providing him with the Nembutal.”

105 As this direction makes clear, the charge of manslaughter by criminal negligence could have been made out on the basis of either what the accused ought to have known or, as a quite separate ground, by a failure of the accused to make enquiries.

106 In this respect the appellant relied on the judgment of this Court in R v Taktak (1988) 14 NSWLR 226 particularly at 242, where the Court quoted the following passage from the judgment in People v Beardsley 113 NW 1128 (1907) (at 1129-1130):

“… [T]he duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be an immediate and direct cause of death.”

107 In the present appeal there is no issue as to the existence of a duty, arising from the vulnerability of the deceased. The issue in the present case turns on whether or not the failure to make enquiries could answer the description of an “immediate and direct cause of death”.

108 In its submissions the appellant stated:

“[T]he jury did not receive any direction as to how the duty to care for a vulnerable person gave rise to an obligation ‘to make inquiries’ about his capacity to suicide.”

“[T]he jury received little guidance as the to content of the duty. They were not informed to whom the inquiries should have been directed or to what criteria. Crucially, they were not told what action the appellant should or should not take if those inquiries had been made.”

109 In my opinion, there is force in this complaint. It is difficult to see how the failure to make enquiries could have constituted an alternative basis for a finding of criminal negligence, as distinct from such failure being a consideration going to establishing the first basis asserted by the Crown for the existence of criminal negligence, ie, that the appellant ought to have known about the lack of capacity on the part of the deceased to make an informed decision to end his life. There was no clear articulation to the jury of how the failure to make enquiries about capacity could constitute the conduct which resulted in the provision of Nembutal, being the act of the appellant which can be said to have caused the death.

110 As I have indicated in my discussion of Ground 2 above, the jury would have been in no doubt that it had to be satisfied that it was an act of the appellant that caused the death. Nevertheless how the appellant’s failure to make enquiries could be such an act was a matter upon which some assistance was required. Presumably, it involves a finding to the effect that there were grounds for doubting capacity, as distinct from a finding that the appellant “ought to have known” of the lack of capacity of the deceased. However, there are further hypothetical steps concerning what enquiries ought to have been undertaken and what the likely results of such enquiries would have been.

111 In my opinion this ground of appeal should be upheld.

Acquittal or New Trial

112 Since writing the above I have read the judgments of Simpson J and Johnson J in draft. Simpson J would direct a verdict of acquittal for reasons outlined in her Honour’s judgment.

113 As Simpson J sets out, the Court posed certain questions to the parties after the hearing of the appeal. As her Honour indicates, there is no ground of appeal that raises the issue of whether manslaughter was an available alternative verdict. However, that does not determine what order the Court may make.

114 Pursuant to s 6(2) of the Criminal Appeal Act 1912, if this Court allows an appeal against conviction the default order is that the Court should direct a verdict of acquittal to be entered. That subsection, however, commences with the words “Subject to the special provisions of this Act”.

115 The relevant special provision is found in s 8 which confers a discretion on the Court in the following terms:

“8(1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial and by any other order which the court is empowered to make.”

116 By reason of the appellant’s acquittal of the charge of murder she cannot be charged again for that offence. The two offences for which a new trial could be directed are manslaughter and aiding and abetting suicide. The latter was on the indictment as an alternative verdict.

117 Nothing that has arisen in the course of this appeal is such as would inhibit this Court from directing a new trial on the charge of aiding and abetting suicide. It is the case that the jury must have decided, in order to convict for manslaughter, that the deceased lacked the mental capacity to make an informed decision to take his own life. However, this is a finding of fact by the jury and double jeopardy considerations do not inhibit a second jury from coming to a different conclusion on this issue.

118 In any event, all of the judges of this Court agree that his Honour erred in his directions to the jury on what could constitute the capacity to commit suicide. On the whole of the evidence it was open for a jury to conclude that, at the relevant time, the deceased had such capacity. In my opinion, the miscarriage of justice that has led this Court to allow the appeal leads me to the conclusion that the miscarriage can be “more adequately remedied by an order for a new trial” on the charge of assisted suicide.

119 In a passage expressly approved by the majority joint judgment in R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at [49], the joint judgment of the Privy Council in Reid v The Queen [1980] AC 343 said, at 349, that it is in the public interest:

“ … that those persons who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing-up to the jury.”

120 I am aware that the appellant will have served her sentence by the time this judgment is handed down. Nevertheless, the criminal involvement of one person in the death of another raises a serious issue of moral culpability that ought be determined, even if no additional penalty is likely to be imposed.

121 The issue of whether or not this Court should order a new trial on the charge of manslaughter is more difficult. If I had come to the conclusion that it would not be open to the jury to convict of manslaughter then this Court should not exercise its discretion under s 8(1) to order a new trial. If, however, it is open to a jury to so convict then there a powerful reasons for coming to the conclusion that the miscarriage of justice that has occurred, by reason of the bases upon which this Court has allowed the appeal, would be more adequately remedied by an order for a new trial.

122 The appellant submits that involuntary manslaughter was not an available verdict because the Crown case was that:

“ ... the accused caused death by an intentional act with the knowledge that death was the inevitable result.”

“ … the appellant had intentionally performed an act which caused death with the knowledge that death would result.”

123 This case, she submits, involves an allegation of murder, not of manslaughter. However, that is not the direction which his Honour gave on the mental element of murder.

124 His Honour’s direction on the mental element of murder was that the Crown had to prove beyond reasonable doubt that the appellant “knew that the deceased lacked capacity”. This was the element, on its verdicts, of which the jury was not satisfied. The thrust of the appellant’s submissions in this respect is that his Honour erred in the direction in a manner which was beneficial to the appellant.

125 If a direction of the kind referred to in [122] above had been given, it may have been more likely that the jury would have convicted of murder. This Court should be slow to direct a verdict of acquittal of manslaughter on a basis that the appellant had the fortuitous advantage of a direction which made it less likely that she would be convicted of murder.

126 The differentiation between the crime of murder by reckless indifference and manslaughter by criminal negligence is often difficult. Although the distinction can be stated in legal terminology, the line between the two is so fine that it gives rise to a quintessential jury issue.

127 Simpson J sets out relevant authorities, including the observations of Menzies J in Pemble v The Queen (1971) 124 CLR 107 at 131 as applied by the Full Court in Nydam supra at 444. The relevant phrase in Pemble is “to do an unjustifiable act causing death, knowing that it is likely to cause death or grievous bodily harm, is murder …”.

128 In my opinion, it is open to a jury to conclude that the appellant did not know that her act of handing over the Nembutal was “likely to cause death”, on the basis that there was a further act to be performed before death was caused, namely the deceased’s act of ingestion. Her ‘knowledge’ was, as the Crown submitted, “that the deceased would die, not that she would cause his death”.

129 On the directions the jury received, the acquittal of murder was based on the jury rejecting the proposition that the appellant knew that the deceased lacked the capacity to commit suicide. In my opinion, it is open to a new jury, which came to the same conclusion, to conclude that her act of handing over the Nembutal was not an act done “knowing that it is likely to cause death”. What she could reasonably be found to have ‘known’ was that the deceased would perform the act which caused death.

130 The alternative of criminal negligence is, in my opinion, open as a verdict on a new trial. This Court should exercise the discretion in s 8(1) of the Criminal Appeal Act.

Conclusion

131 It is not necessary to deal with the other grounds. The appeal should be allowed, the conviction quashed and a new trial ordered.

132 SIMPSON J: I have read in draft the judgments of the Chief Justice and of Johnson J. Events that have transpired since those judgments were prepared renders it necessary to recount some history, including those later events. I consider it necessary to examine closely and in some detail the case the Crown proposed, from the outset, to make, and such deviation as there was from that case as the trial progressed.

133 The trial of the appellant commenced on 5 May 2008. The appellant and a co-accused, Ms Caren Jenning, stood trial jointly. The indictment charged the appellant with the murder of Graeme Wylie, and, in the alternative, with aiding and abetting the suicide of Graeme Wylie (an offence contrary to s 31C of the Crimes Act 1900). She entered pleas of not guilty to each count. The indictment charged Ms Jenning with importing a border controlled substance (a drug called, in the indictment, Pentobarbitone, but commonly known, and referred to throughout the trial, as Nembutal); with being an accessory to the murder of Graeme Wylie by the appellant; and with aiding and abetting the suicide of Graeme Wylie. Ms Jenning, too, entered pleas of not guilty to all counts. During the course of the trial, in circumstances to which I will come, alternative counts of manslaughter against the appellant, and of being an accessory to manslaughter against Ms Jenning, were added. The Crown alleged that all offences (other than the importing offence) were committed on 22 March 2006. By verdicts delivered on 19 June, the jury found the appellant not guilty of murder but guilty of manslaughter. It was therefore unnecessary to return a verdict on the alternative count of aiding and abetting suicide. The jury acquitted Ms Jenning of murder, but guilty of an offence of being an accessory to the appellant’s offence of manslaughter.

134 Ms Jenning died before sentencing. On 12 November 2008 the appellant was sentenced to imprisonment for 2½ years, made up of a non-parole period of 22 months, and a balance of term of 8 months, to be served by way of periodic detention.

135 The appellant appeals against the conviction. She does not seek leave to appeal against the sentence.

136 It is here to be noted that there was no reference in the indictment to an alternative charge of manslaughter against the appellant. It is not necessary, for an alternative count of manslaughter to be left to the jury, that it be included in the indictment; manslaughter may, at common law, be left as an alternative verdict to a charge of murder (R v Downs (1985) 3 NSWLR 312) – where the case made on behalf of the Crown, or facts of which evidence is given at trial, so permit: Gammage v R [1969] HCA 68; 122 CLR 444; R v Schneidas (No 2) [1981] 2 NSWLR 713.

137 But, in this case, an alternative verdict of manslaughter was not, at the outset of the trial, within the contemplation of any of the participants. This can be discerned unequivocally from the Crown opening to the jury. I propose to refer in some detail to that opening. In the interests of economy, I will omit reference to some factual aspects of the Crown case that are not relevant to the issues which I am considering.

138 A very brief synopsis of the Crown case is this. The appellant was in a long-term relationship with Mr Graeme Wylie. From 2003 Mr Wylie suffered from Alzheimer’s disease. To the knowledge of both the appellant and Ms Jenning the disease had, by 2005, caused significant deterioration in Mr Wylie’s mental condition, such as to affect his capacity to make decisions about his own life. Mr Wylie had expressed an intention to commit suicide. It was essential to the Crown case on both murder and manslaughter that Mr Wylie lacked the mental capacity to make a decision to commit suicide. It was essential to the Crown case on murder (but not manslaughter) that the appellant knew that Mr Wylie lacked that capacity. The appellant and Ms Jenning were members of an organisation that supported voluntary euthanasia and assisted suicide. They were aware that the drug Nembutal was one that could be used to cause death quickly. They obtained (unlawfully) Nembutal. The appellant made it available to Mr Wylie, in circumstances where she knew, and intended, that he would consume it and did. That is what happened on 22 March 2006.

139 Although she was interviewed by police, on 8 September 2006, the appellant denied any involvement in Mr Wylie’s death. The Crown case against her was circumstantial. In particular, the Crown relied upon circumstantial evidence to provide the basis for an inference that the appellant knew that Mr Wylie lacked relevant capacity.

140 The Crown prosecutor began his opening with what he called “a very brief outline” of the Crown allegation. He said:

“The accused are charged with the murder of Graeme Wylie who was 71 years of age at the time of his death. [The appellant] … was the de facto spouse of Graeme Wylie and had been de facto spouse for something like 18 years at the time of his death. The accused Caren Jenning had been a very close friend of his for many, many years, even well before the de facto relationship with [the appellant].

At the time of his death Graeme Wylie had significant dementia due to Alzheimer’s disease. His cognitive functions had been declining for about 10 years prior to his death, that they had been severely and significantly declining, particularly in the last six years before his death. At the time of his death he was unable to look after himself. He was unable to manage his own financial affairs. He did not know whether he had any children. What sex they were. He could not name a pencil. He could not follow a simple instruction like fold this piece of paper and put it in your lap. He was unable to engage in any sophisticated conversation. He was not able to recite three numbers in reverse.

He died on 22 March 2006 at his home … He died from a massive overdose of a barbiturate called Nembutal. Nembutal is the drug which is, in Australia, most commonly used by vets to put down sick animals. Apart from having a massive overdose of Nembutal in his body Graeme Wylie had very high levels of a drug called Maxolon which is an anti-nauseatic drug.

The two accused [the appellant] and Caren Jenning, were both members of an organisation known as Exit International which was an association which supported suicide and voluntary euthanasia. The founder and executive director of Exit International was Dr Phillip Nitschke … Exit International had a newsletter and held workshops where people who attended were given instruction on methods of committing suicide and one of the methods that Exit International promoted for suicide was the use of Nembutal in combination with Maxolon with a means of committing suicide. The purpose of the Maxolon is that Nembutal is a very awful tasting drug and the Maxolon was designed to stop the person taking the Nembutal from just vomiting it up.

The Crown case is that the accused arranged for the death of this man

327 In Associate Professor Peisah’s evidence-in-chief, the Senior Crown Prosecutor asked her questions concerning Mr Wylie’s testamentary capacity (T929-930) (emphasis added):

“Q. I'd like to ask you some specific questions about Mr Wylie's testamentary capacity. Could you tell us what you understand to be what is required in order for a person to have testamentary capacity, that is, the capacity to make a Will?
A. I - whenever I assess capacity, I use whatever it is, standardised tests, and it depends on the type of capacity that you're asking. When it comes to testamentary capacity or Wills, the experts in the area use a very old law - a very old precedent in law called ‘banks and good fellow ’ and that says something to the effect of, ‘If you've got testamentary capacity, you need to know what a Will is. You need to know the nature and extent of your estate, what you have got to give away. You have got to consider the claims, the people that might be taken into account’. And you can't have a disorder of mind, delusions, they talk about, or hallucinations that will poison your ideas about your family or your friends or your potential beneficiaries. Since that time, those of us in this field have expanded on those but essentially they remain the same and we usually go through those four criteria.

Q. And would you tell the court what your opinion is as to whether or not Mr Graeme Wylie in March 2006 had testamentary capacity?
A. Will I go through each criteria briefly?

Q. If you would please?

A. May I just refer to my report?

HIS HONOUR: Yes, certainly.

CROWN PROSECUTOR

Q. I think it's page 20?

A. Thank you. Okay, so number 1 I said: Did he know what a Will was? He probably did because people know that kind of thing right till the end. It's kind of what they call an old knowledge. Number 2: Would he have known the nature and extent of his estate? There was no evidence as to what he knew about his estate; and in answer to that question you weigh up how complex the person's estate is, you know, did they have a really complex share portfolio, 20,000 houses, what was it worth? I understand his estate wasn't complex and the only thing was though, I thought he needed to know what percentage of his estate he was giving to his daughters, given he had changed it from the previous one, and that what $200,000 represented in terms of the whole of his estate. I can talk about that, if needed, later but, in essence, I don’t know much about how much he knew about his estate but I would have hoped he would have some idea roughly of what it was worth and what 200,000 meant. You know, was 200,000 one cent in terms of the whole estate or did he think he only had 250,000? The third part, could he weight and discriminate the claims of his beneficiaries? This is the one that most people with dementia get stuck on because it's very complicated, weighing and discriminating, and one of the ways we look at that is we look at the pattern of the previous Wills and what was of great concern was that he changed a Will made in 1995 to that made in 2006 in the nature of his bequests to his daughters. In fact my understanding from the conversations with the solicitor, Pam Favretto, was that he initially walked in and said ‘I want to leave nothing to my daughters’ and it was only through Shirley Justins' encouragement that he agreed to leave some money. Is that correct? So we have got before a man, before he was demented, taking into account his daughters to a man who's now demented and who now completely wants to wipe out his daughters, and this is a little unusual but, more importantly, you know, in terms of completely wiping out your daughters. But this idea of changing your mind about family members during the course of dementia is something that, from my - I've done some research on this issue and I found that people with dementia who change their mind about family members is usually because of the dementia and we get very suspicious if previous loved ones are no longer favoured, or indeed poisoned, their affections are poisoned, and it's likely he's changed his mind due to his daughters. In my experience and reading the documents, this was due to the dementia and there was nothing, from what Pam Favretto said in the interview between the solicitor and him, that showed me - that explained that he had really thought about it and explained why he didn't like his daughters any more and wanted to completely disinherit them. Other than this issue, if you recall from the 1995 Will, he felt that they'd been given a lot of money already from Mum but he still included them in 1995, so that situation was always the case and suddenly, now, they deserve nothing. Why? And you'd want to know why and I concluded, on the basis of reading and my expertise, that that was due to dementia.”

Banks v Goodfellow

Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges

Stuart v Kirkland-Veenstra

.

328 A little later, the Senior Crown Prosecutor asked Associate Professor Peisah (T938-939):

“Q. Would he have had the cognitive capacity to initiate a plan for a suicide which involved the acquisition of a drug like Nembutal? A. To initiate a plan.

Q. Involving the acquisition of a drug such as Nembutal?
A. Do you mean to start carrying out the plan?

Q. To start someone else doing it for him?
A. No.

Q. In your view, would he have had the capacity to organise such a plan and attend to the details of carrying out the different steps in it?
A. No.

Q. In your view, was he capable of carrying out a plan such as that independently?
A. No.

Q. In your view, did he have the foresight and the ability to remember or to organise to dispose of any evidence after taking Nembutal?
A. No.

Q. And would you explain to the court why you have come to those conclusions?

A. Because at that level of dementia he would have lacked judgment, reasoning and planning abilities to carry out such a complex task.

Q. In your view, did Mr Wylie, as at the date of his death, have the capacity to weigh, in his own mind, his current situation medically, the prognosis for himself medically, the decision of whether or not to continue with his life or to put it to an end, bearing in mind his medical situation, the consequences of death to himself and to his loved ones?
A. No.

Q, And why is that?

A. Because of the complexity of such a decision in the context of a man with moderately severe dementia.”

329 In his next question, the Senior Crown Prosecutor invited comparison with the complexity of a decision to make a will (T939-940):

“Q. How would you compare the complexity of that decision with the complexity of, say, making a Will of the kind that was signed by Mr Wylie in March 2006?
A. I think you're asking me, what we talk about, as a hierarchy of capacity, which is harder, if you are kind of getting me, to order it. I would think ultimately the decision to end his life and - the way you put that, sorry.

Q. Yes?
A. Will I use the word ‘euthanasia’ or let me know.

Q. The decision to end his life bearing all factors in mind, what do you say about that to a decision about the Will?

A. That's a higher order. It is a much more complex decision but the Will, in the sliding scale of Wills, was a complex Will.

Q. Now, could you explain to the court why it is more complex to make a decision about suicide involving those factors that I have mentioned, as opposed to the Will?

A. Because, as you articulated, the decision to commit suicide, taking into, account his situation, he would have to have intact memory, he would have to have intact judgment, he would have to have intact memory to remember what his Alzheimer's is, what it meant to him, everything he had been told by the doctors. All the resources available to him and his wife - what his Alzheimer's was, what the prognosis was, what the possible alternative treatments he could have for it, what other help he could get for it and for what other help he could get for his wife. He would have to take into account what he had been told by the doctors about Alzheimer's Disease, the implications of his death for him - for his family. I am just trying to - sorry, I have got a blank right now. His death, his - he would also have to take into account the treatments that had been offered him and, I am sorry, and he would also have to be free of depression.

Q. What's the significance of depression?
A. Depression is a pathological condition that is associated with your wish to die, and evidence from the literature and the feeling around the world is that generally, generally this is the case, that old people who want to die have, generally, depression, a treatable illness. Even demented people who want to die generally have depression, a treatable illness. People in the community think - because they think it is understandable that somebody might want to die or be depressed, therefore that person doesn't have depression or an illness, that it's understandable, but that's not the case. Generally we feel that people who wish to die, people who are depressed, even if it is understandable, have a treatable psychiatric illness.

Q. What significance, if any, would you ascribe to the fact that he was in pain?

A. Well, that's another factor that would have increased his suffering and he would have had to take into account what options there were to treat his pain.

Q. Would he have been capable of appreciating what options there were for treating his pain?

A. No, no, no, because if you think about appreciation, it involves memory, what you have been told, judgment, reasoning, planning and, what I talked about, working memory - weighing up all these things all at once. Finally and foremost, if you are asking me about complexity of decision, we often rate decisions in terms of their consequences. So, the consequences of death is, you know, the ultimate, isn't it? So, while the consequences of making a bad Will, is bad, the consequences of death is so severe that we have that as being a very complex decision. We don't need to have as much brain power to decide on blood tests as you do to decide on death.

Q. Is there anything in relation to Mr Wylie that I have omitted to ask you that you feel is of significance?

A. No.

Q. In relation to his consultations with Mrs Favretto, would you explain to the court the difference between open questions and closed questions?

A. A common situation occurs when there are consultations between lawyers and their clients where lawyers put a document to a person and say ‘blah, blah, blah, do you understand that?’ And the person goes ‘yes’. ‘I'm told that this is this, do you understand that?’ The person says ‘yes’, or a person might make a bold statement and then the lawyer will take that at face value. This is not any criticism of lawyers, it is just because they are not doctors making that assessment. I'm not - and that's what we call a closed question. And, really, a person with dementia, you really need them to explain in their own words why -what their understanding is; not just ‘yes, I understand’. In my experience of, as I said, probably over 100 cases and mostly Will challenges, that's the most common scenario where questions are put in a closed way, the person says ‘yes’ and the lawyer feels satisfied that that indicates understanding. And that's just because lawyers aren't trained as assessors, that's all.”

330 Later on the day when Associate Professor Peisah was giving evidence and the concept of testamentary capacity had been raised, the jury asked a question which led to the following evidence being given in the presence of the jury (T951-952):

“HIS HONOUR

Q. Can we take the second question first:

‘Similar to testamentary capacity, is there a range of factors that go into the capacity to decide to die?’

I think what the jury perhaps want is, in relation to the three or four points you gave us in relation to testamentary capacity, can you do the same sort of checklist in relation to capacity to decide to die?
A. There’s no tests for capacity to decide with respect to suicide, other than to say that we must exclude depression, if you're talking about capacity to choose euthanasia, that's a different question. Is that what you wanted? Is that the issue - you see, choosing to die might mean suicide, it might mean euthanasia.

Q. I think--
A. Because suicide is pathological and euthanasia is a different issue. Sorry, I'm so sorry.

HIS HONOUR: I'm not sure I understand the difference.

WITNESS: Well-

HIS HONOUR

Q. For example, this man apparently applied to go to Switzerland to be, if you like, euthanased; in other words, he decided to go to Switzerland to suicide, but by somebody else assisting him to suicide under a government regime. To me, I'm not sure that I know there's a difference between ‘euthanasia’ and ‘suicide’ in that way. What do you see as the difference between suicide and euthanasia?
A. Well, suicide is by your own hands and, as far as medicine knows, the capacity to suicide is based on the presence of depression, or absence of depression. The capacity--

Q. I'm not sure that's a legal capacity?
A. No, that's what I'm saying, there isn't any, but with euthanasia there aren't legal definitions.

Q. It seems to me ‘capacity at law’ will be regardless of depression. I would have thought ‘at law’ a depressed person can give an informed consent at law. I'll hear about that later on?
A. Okay.

Q. There's a difference, I think, between a medical view of capacity and a legal view of capacity. Anyway, carry on?
A. The capacity - if we just take where there is tests in euthanasia, in Holland, what doctors have to decide is: Is it voluntary? Is it well considered and is it consistent? I have - I have put a lot of thought into this and I talked to - I have looked up the literature and spoken to a colleague in Holland, so I'm going to refer to what he said.

Q. We know what Dignitas thought was the requirements?
A. Sorry?

Q. We know what Dignitas in Switzerland thought were the requirements?
A. Right, okay. Well, anyway, in Holland my understanding is-

BODOR: Your Honour-

HIS HONOUR

Q. I don't know that that view helps us?

A. Okay.

Q. What sorts of things would you believe that a person, who is making a decision, either to be euthanased or to commit suicide, would be likely to take into account in leaving that decision to have his or her life ended?
A. Well, I would use the - again - I've never assessed somebody for a capacity to commit - to be sent to euthanasia.

Q. You gave us some examples, you said: Intake, memory, judgment, understanding of the position?
A. Well, if you equate it to testamentary capacity, I would use the generic principles where ability to communicate the choice; factual understanding of the issues; appreciation of the significance - sorry, of the situation and its consequences; and rational manipulation of the information.

Q. And that includes those things that you told us before, that is, an understanding of death and its implications?

A. Yes, and why you want to die and the treatment - the situation that you're in that's making you want to die, and part of that is - relies on these comments and skills of judgment reasoning and an absence of depression, which impacts on your ability, an absence of depression and dementia, both of which will impact on your decision-making capacities to consider and weigh these things.”

331 The final question in examination-in-chief of Associate Professor Peisah was as follows (T955):

“Q. Can I ask you this though: You talked to the jury about the deceased lacking the cognitive capacity to plan a suicide, to initiate a suicide, to organise a suicide because he lacked the judgment and planning to carry it out. But what if the suicide was organised by somebody else and he was given the opportunity to commit suicide, what about his capacity to determine whether or not, for example, if some liquid was placed in front of him which caused his death, to decide to drink the liquid. That's a lot less than planning a suicide and organising?
A. He still had to think about, ‘Okay I want to die, what are my choices? What could help me with my suffering? What could help Shirley, my wife? What are the consequences for Shirley if I'm found dead? What is the suffering it's going to cause my two daughters?’

HIS HONOUR: Yes, all right, that may help with the jury's question.”

332 The cross-examination of Associate Professor Peisah by senior counsel for the Appellant concluded with the following question (T970):

“Q. That man made the choice to drink the drink and die; do you agree?”
A. Yes.”

333 In re-examination, the Senior Crown Prosecutor asked (T983-984):

“Q. Mrs Peisah, my learned friend Mr Bodor asked you some questions right at the end of his questioning. He put to you a scenario of an interchange between a person who has died and that person's partner of 18 years, and you were asked the question:

‘Q. That man made the choice to drink the drink and die; do you agree?’

And you said "Yes". Now, in your view, based upon the limited material that was presented to you by Mr Bodor, did that person make an informed, independent choice with the capacity to make that choice?
A. I don’t know. I don't think so but I'm not sure. I don’t know. I wasn't there, and it really is very limited to what extent I can conclude, not being there. I agree, from the evidence that's been presented to me, that he made a choice, as I said. To what extent it was informed, not being there, I really can't - I can only tell you generalities - what I've assumed.”

334 As mentioned earlier, given the fact that Mr Wylie had made a new will on 15 March 2006, it may be taken that relevant principles concerning testamentary capacity had some relevance in the trial given the close proximity between that event and Mr Wylie’s death. An issue raised in the appeal, however, is whether those principles had application as a test of capacity for the purpose of suicide so as to warrant the written and oral directions given to the jury.

The Grounds of Appeal

335 The grounds of appeal are set out in the judgment of Simpson J at [213].

336 In ways reminiscent of the trial, the appeal has had a number of twists and turns. Six grounds were filed originally, with the appeal being listed for hearing in February 2010 before a differently constituted Bench. That hearing was vacated when the Appellant gave notice of intention to rely upon Grounds 7 and 8.

337 None of the original or additional grounds of appeal contended that manslaughter by criminal negligence was not available in the circumstances of the case. Ground 8 complained (and continues to complain) of erroneous directions concerning this offence. No ground of appeal asserted that the verdict of guilty of manslaughter was unreasonable. After the Court sought further submissions in August 2010, no application was made to add or amend the grounds of appeal.

338 The Criminal Appeal Act 1912 requires an appellant to identify grounds of appeal against conviction, with a right of appeal existing on any ground which involves a question of law alone, and an appeal by leave being available on a ground involving a question of fact alone or a question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal: s.5(1) Criminal Appeal Act 1912.

339 The analysis of Simpson J at [248] to [263] raises powerful questions concerning the availability of involuntary manslaughter where an accused person acts with the intention that the death of another person will result. However, this argument was not put at trial. Nor is it contained in a ground of appeal in this Court. As Simpson J observes at [265], the argument was put in oral submissions, and in the supplementary submissions, within the framework of the existing grounds of appeal.

340 I confess that it is difficult to see a proper conceptual basis upon which manslaughter by criminal negligence can arise in this case. However, legal concepts are being considered here in an unusual factual context. This analysis is being undertaken for the first time on appeal in this Court, and still without a ground of appeal raising this issue. In these circumstances, I do not think this Court should make the orders proposed by Simpson J, which include acquittal of manslaughter.

341 The orders proposed by the Chief Justice will leave to the Crown the decision as to whether a new trial ought take place. The Crown will no doubt consider whether a viable count of manslaughter is available, in light of the decision of this Court. However, the Crown should not be shut out from considering that question further, in the exercise of prosecutorial discretion.

342 Apart from the manslaughter count, it will be remembered that a count of aid and abet suicide was included on the indictment for the Appellant, with a plea of guilty to that charge being entered (but not accepted) during the trial. If the Appellant was acquitted of manslaughter, a question would remain as to the role of the alternative count. No submissions were made in this Court as to whether the Court could or should find the Appellant guilty of the alternative count of aid and abet suicide in accordance with the power in s.7(1) Criminal Appeal Act 1912. All of this supports the making of the orders proposed by the Chief Justice.

343 With respect to the grounds of appeal, I record my agreement with the reasons of the Chief Justice with respect to Grounds 1, 2, 7 and 8.

344 What follows are some additional observations with respect to issues raised by the grounds of appeal. The observations assume that manslaughter by criminal negligence may be available in the circumstances of this case, this being a controversial assumption given the matters raised by Simpson J and mentioned above.

The Directions to the Jury Concerning Mr Wylie’s Capacity to Commit Suicide

345 A major issue in this appeal concerns the capacity of Mr Wylie to make his own decision to end his life on 22 March 2006 and (in the context of manslaughter) what the reasonable person in the position of the Appellant would have known and done in the circumstances.

346 In the end, there was no issue at the trial that the Appellant handed to Mr Wylie the Nembutal which he then drank. As the Chief Justice makes clear, as did Howie J at trial, the critical issue was whether it was the act of Mr Wylie which caused his death (in which case, the Appellant was liable to conviction for aid and abet suicide) or whether it was the Appellant’s act which caused his death (in which case she was liable to conviction for murder or manslaughter, depending on the jury’s finding concerning her mental state). The present discussion is confined to manslaughter given the verdict of the jury acquitting the Appellant of murder.

347 Once the jury was satisfied that Mr Wylie lacked the capacity to make what was described as an informed decision to take his own life, the remaining questions involved the proof of criminal negligence on the part of the Appellant. As the Chief Justice notes at [25], the jury was directed that the Crown must prove “that a reasonable person in the position of the [Appellant] would have been aware that the deceased lacked the capacity to make an informed decision to take his own life or would have made inquiries to determine whether the deceased had that capacity before providing him with the Nembutal” and that the “failure of the [Appellant] to make such inquiries was a breach of the duty she owed to the deceased”.

348 I have given careful consideration to the question of whether these directions should be characterised, not as directions of law as to mental capacity, but rather directions to the jury to assist the process of fact finding concerning this aspect in light of evidence adduced at the trial. I do not consider that the directions can be characterised in the lastmentioned way.

349 I conclude that the written directions provided to the jury were to be fairly read as directions of law posing a test of mental capacity for suicide. I agree with the conclusions of the Chief Justice at [94]-[100].

Capacity to Make a Decision to Take One’s Own Life

350 Where a person brings about the death of another in circumstances where it is said that the latter wishes to die, there is a need for clarity, if not certainty, concerning the mental capacity of the latter person to decide to die. The dissenting judgment of McLachlin J (as the Chief Justice then was) in Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519 at 126 provides some practical guidance in this context:

“In my view, the existing provisions in the Criminal Code go a considerable distance to meeting the concerns of lack of consent and improperly obtained consent. A person who causes the death of an ill or handicapped person without that person’s consent can be prosecuted under the provisions for culpable homicide. The cause of death having been established, it will be for the person who administered the cause to establish that the death was really a suicide, to which the deceased consented. The existence of a criminal penalty for those unable to establish this should be sufficient to deter killings without consent or where consent is unclear.”

351 Although the proposition contained in the preceding paragraph ought not be construed as a change in onus of proof where murder or manslaughter is charged in this context, it serves to emphasise the particular importance of a practical assessment of capacity given the irrevocable nature of the act which is to occur.

352 Since the trial of the Appellant, there have been a number of decisions of courts in Australia where consideration has been given to the test for capacity where a person suffering from an extremely disabling and terminal condition seeks to decline to take food, water or medical treatment, with the consequence that death will result. These decisions involve the capacity of a person to make a decision which will effectively bring life to an end. Although these decisions arise from different factual contexts than that of the present case, their circumstances are somewhat more analogous than the concept of testamentary capacity. It is self-evident that there is a fundamental difference between capacity to make a will which may affect division of property amongst others (but not bring life to an end) and a decision to end one’s own life either immediately (by suicide) or by a longer process (such as the non-consumption of food, water and medical treatment).

353 I emphasise that the cases to which I am about to refer had not been decided at the time that the trial Judge was called upon to formulate directions in this difficult trial. However, the decisions are available to this Court and the reasoning in them, in my view, assists the resolution of the appeal.

354 In the course of the trial, the trial Judge was provided with English decisions touching upon refusal of treatment. The judgment of Lord Donaldson MR in Re T (Adult: Refusal of Treatment) [1993] Fam 95 and of Thorpe J in Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 were provided to his Honour (T1024). However, as I have said, the directions concerning capacity to commit suicide appear to have been based very largely upon principles relating to testamentary capacity, taken with the evidence of Associate Professor Peisah.

355 The more recent Australian authorities are Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 (Malcolm CJ); Hunter and New England Area Health Service v A by his Tutor T [2009] NSWSC 761; (2009) 74 NSWLR 88 (McDougall J); Australian Capital Territory v JT [2009] ACTSC 105; (2009) 232 FLR 322 (Higgins CJ) and H Limited v J and Anor [2010] SASC 176; (2010) 240 FLR 402 (Kourakis J).

356 An examination of those cases reveals some criticisms of terms such as “informed decision” and “rational decision”.

357 In Hunter and New England Area Health Service v A, McDougall J observed at 90 [4] that the case was concerned, at the level of principle, with the right of a capable adult to refuse medical treatment. It was not concerned with any such notion as “the right to die”, although his Honour observed that this was the likely consequence of giving effect to Mr A’s wishes in that case. With respect to capacity, McDougall J said at 93-94 [23]-[25]:

“23 There is a presumption of capacity, whereby an adult ‘is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted’ (see Butler-Sloss LJ in Re MB [1997] 2 FCR 514 at 553).

24 In this context, it is necessary to bear in mind that there is no sharp dichotomy between capacity on the one hand and want of capacity on the other. There is a scale, running from capacity at one end through reduced capacity to lack of capacity at the other. In assessing whether a person has capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision (as Lord Donaldson pointed out in

Re T

at 113). The capacity required to make a contract to buy a cup of coffee may be present where the capacity to decide to give away one’s fortune is not.”

358 In the context of factors which may vitiate consent, McDougall J said at 94 [28] (emphasis added):

“Another factor that has been suggested to vitiate refusal of treatment is the absence of, or failure to provide, adequate information.

I do not accept the proposition that, in general, a

[competent]

adult’s clearly expressed advance refusal of specified medical procedures or treatment should be held to be ineffective simply because, at the time of statement of the refusal, the person was not given adequate information as to the benefits of the procedure or treatment (should the circumstances making its administration desirable arise) and the dangers consequent upon refusal. As I have said, a valid refusal may be based upon religious, social or moral grounds, or indeed upon no apparent rational grounds

; and is entitled to respect (assuming of course that it is given freely, by a competent adult) regardless. But more fundamentally,

the concept of informed refusal seems to me to involve some degree of confusion

.”

359 McDougall J referred to consent based on full information, and the question of whether there ought be a rational basis for the decision at 94-95 [30] (emphasis added):

“In circumstances where it is practicable for a medical practitioner to obtain consent to treatment, then, for the consent to be valid, it must be based on full information, including as to risks and benefits. But the question with which I am concerned is whether an advance refusal of consent to certain specified forms of medical treatment equally needs to be supported by the provision of all adequate information. The reason for obtaining consent to treatment is to justify in law what would otherwise be a battery (I leave aside the emergency situation where consent cannot be obtained).

A consent that is based on misleading information is clearly of no value; and a consent based on insufficient information is not much better. But once it is accepted that religious, social or moral convictions may be of themselves an adequate basis for a decision to refuse consent to medical treatment, it is clear that there is no reason that a decision made on the basis of such values must have taken into account the risks that may follow if a medical practitioner respects and acts upon that decision. This is so a fortiori where there is no discernible rational basis for the decision

. No question arises of justifying what would otherwise be unlawful, and factors to be taken into account in determining whether something is or is not unlawful do not have application by analogy.”

360 In the course of summarising relevant principles, McDougall J included the following statement at 97-98 [40](7) and (10) (emphasis added):

“40. There does not appear to be a great body of authority in Australia dealing with the relevant principles. (The decision of Ambrose J in Re Bridges [2001] 1 Qd R 574 focused on relevant Queensland legislation, and on its application on the facts of that case.) Accordingly, to assist those faced with emergency care decisions, I summarise my understanding of the relevant principles (whilst acknowledging that what I say will not apply in every conceivable circumstance):

…

(7) There is a presumption that an adult is capable of deciding whether to consent to or to refuse medical treatment. However, the presumption is rebuttable.

In considering the question of capacity, it is necessary to take into account both the importance of the decision and the ability of the individual to receive, retain and process information given to him or her that bears on the decision

.

…

(10) It is not necessary, for there to be a valid advance care directive, that the person giving it should have been informed of the consequences of deciding, in advance, to refuse specified kinds of medical treatment.

Nor does it matter that the person’s decision is based on religious, social or moral grounds rather than upon (for example) some balancing of risk and benefit. Indeed, it does not matter if the decision seems to be unsupported by any discernible reason, as long as it was made voluntarily, and in the absence of any vitiating factor such as misrepresentation, by a capable adult

.”

361 In Australian Capital Territory v JT, Higgins CJ observed at 326 [29] that the patient in that case “lacks both understanding of the proposed conduct and the capacity to give informed consent to it” so that “those charged with JT’s care remain under the common law duty to provide that care to the best of their skill and ability”.

362 In H Limited v J, Kourakis J adopted the reasoning of McDougall J in Hunter and New England Area Health Service v A with respect to the concept of “informed” refusal (at 415 [37]). Kourakis J said at 416-417 [41] (emphasis added):

“McDougall J recognised that an adult’s apparent consent may be ineffective if he or she were incompetent in law to give it or if the consent was otherwise vitiated by factors like fraud or undue influence.

However, McDougall J rejected the contention that a refusal of treatment must be in any sense ‘informed’

.”

363 Drawing upon these authorities, it may be said that the concept of “an informed decision” is not especially apt to an assessment of capacity to decide to commit suicide. Nor is it particularly useful to speak of a “rational decision” in the sense of a decision for which a good reason may be ascribed or identified.

364 In Stuart v Kirkland-Veenstra, French CJ at 237 [46] referred to the “complexity and variety of factors which may lead to suicidal behaviour”.

365 A person possessing capacity may decide to commit suicide on a basis which is ill-informed or not supported by a reason, but it may be the reasoned choice of the person, which the law accepts will render the act of suicide the act of the person and not another person who provides the means of death. In my view, the last proposition reflects the appropriate test to be applied in a case such as this.

Application of Proviso

366 I am satisfied that error has been demonstrated by the Appellant in the directions given to the jury concerning capacity in the manner identified by the Chief Justice. If this point was reached, the Crown submitted that the proviso ought be applied so that the appeal should be dismissed.

367 I have given careful consideration to the Crown’s submission on this aspect. The evidence at trial as summarised earlier constituted, in my view, a substantial case upon which a properly instructed jury could have determined that a reasonable person in the Appellant’s position, with the knowledge of the Appellant, would not have handed the Nembutal to Mr Wylie. However, the directions concerning Mr Wylie’s mental capacity went to the heart of the trial for manslaughter by criminal negligence. It cannot be concluded that the error at trial would have had no significance in the determination of the original verdict. The proviso ought not be applied to dismiss the appeal.

Conclusion

368 Since preparing this judgment, I have had an opportunity to consider the additional observations of the Chief Justice (at [112] and following) under the heading “Acquittal or New Trial” and Simpson J’s addendum at [271] to [274]. I prefer not to express an opinion concerning the issues raised by the Chief Justice at [122] to [129] and by Simpson J at [273]. However, the Chief Justice’s analysis of the viability of a charge of manslaughter by criminal negligence reinforces my view (at [341]-[342] above) that a new trial should be ordered. It cannot be concluded that manslaughter by criminal negligence is an implausible count so that an order for retrial should not be made on that charge: R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at 263-264 [69]

369 The Crown will have an opportunity to determine whether the Appellant should stand trial and, if so, whether the indictment should allege both manslaughter and aid and abet suicide. I have in mind the observations of Kirby J in Dyers v R [2002] HCA 45; (2002) 210 CLR 285 at 314 [81] (footnote omitted):

“ An important consideration favouring the ordering of a new trial in such circumstances is the fact that, by doing so, the court discharges its principal functions as an appellate court. It identifies any legal error. It quashes the judgment or orders infected by that error. It vindicates the law by its order permitting a retrial when the error will not presumably be repeated. Such order also respects the proper functions of the trial court, including the jury (where applicable), as the decision-maker resolving disputed matters of fact in serious criminal cases where guilt is contested. It leaves that decision-maker, properly instructed, to bring in the verdict that leads to conviction or acquittal. It avoids overreaching the functions of the appellate court. It maintains the divide between the respective powers and responsibilities of the executive government, to decide upon the prosecution of criminal offences (including by way of a repeated prosecution at a second trial ) and of a court, whose functions ordinarily arise in criminal matters only after the decision to prosecute (or reprosecute) is taken.”

370 The appeal should be allowed, the conviction for manslaughter should be quashed and a new trial ordered.

**********

23/11/2010 - "and" added between "quashed" and "a new" - Paragraph(s) 370

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Citations

Justins v The Queen [2010] NSWCCA 242

Most Recent Citation

Burns v The Queen [2011] NSWCCA 56

Cases Citing This Decision

53

Eastman v Director of Public Prosecutions (No 2) [2014] ACTSCFC 2

Re Application of Local Health District; Patient Fay [2016] NSWSC 624

Cases Cited

19

Statutory Material Cited

2

Dyers v The Queen [2002] HCA 45

R v Taufahema [2007] HCA 11

CITATION:	Justins v Regina [2010] NSWCCA 242 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 June 2010
JUDGMENT DATE:	28 October 2010
JUDGMENT OF:	Spigelman CJ at 1; Simpson J at 132; Johnson J at 275
DECISION:	The appeal should be allowed, the conviction quashed and a new trial ordered.
CATCHWORDS:	CRIMINAL LAW - offences against the person - homicide - where the deceased had an illness causing cognitive degeneration - where the deceased consumed a drug given to him by the appellant knowing that by doing so he would die - whether the act causing death was that of the deceased or the appellant - whether the trial judge’s directions on the mental capacity of the deceased were erroneous - whether possessing the capacity to commit suicide requires a person to make an “informed decision to take one’s own life” - CRIMINAL LAW - offences against the person - manslaughter - whether manslaughter by criminal negligence available where a person makes a drug available for another’s consumption intending that death will result - whether failure to make enquiries of a person’s mental capacity capable of constituting a breach of duty causing death - CRIMINAL LAW - procedure - summing up - whether trial miscarried due to trial judge not identifying essential element of the offence in written directions but doing so in oral directions - CRIMINAL LAW - appeal and new trial - Criminal Appeal Act 1912 s 8(1) - whether an acquittal or a new trial should be ordered - WORDS AND PHRASES - “suicide”
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
CASES CITED:	Australian Capital Territory v JT [2009] ACTSC 105; (2009) 232 FLR 322 Banks v Goodfellow [1870] LR 5 QB 549 Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 Clift v Schwabe (1846) 3 CB 437 Dyers v R [2002] HCA 45; (2002) 210 CLR 285 Gammage v R (1969) 122 CLR 444 H Limited v J and Anor [2010] SASC 176; (2010) 240 FLR 402 Hong v R [2009] NSWCCA 242 Hunter and New England Area Health Service v A by his Tutor T [2009] NSWSC 761; (2009) 74 NSWLR 88 In Re Davis [1968] 1 QB 72 Nydam v R [1977] VR 430 Pemble v The Queen (1971) 124 CLR 107 People v Beardsley 113 NW 1128 (1907) R v Downs (1985) 3 NSWLR 312 R v Sam (No. 17) [2009] NSWSC 803 R v Schneidas (No 2) [1981] 2 NSWLR 713 R v Taktak (1988) 14 NSWLR 226 Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 Re T (Adult: Refusal of Treatment) [1993] Fam 95 Regina v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269 Reid v The Queen [1980] AC 343 Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519 Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 The Queen v Crabbe (1985) 156 CLR 464 The Queen v Lavender [2005] HCA 37; (2005) 222 CLR 67 The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232 Wilson v The Queen (1992) 174 CLR 313
TEXTS CITED:	Herring, J. Palser, E. ‘The Duty of Care in Gross Negligence Manslaughter’ [2007] Criminal Law Review 24
PARTIES:	Shirley Justins (the Appellant) The Crown (the Respondent)
FILE NUMBER(S):	CCA 2007/3825006
COUNSEL:	T A Game SC with K J Edwards (Appellant) L A Babb SC with S C Dowling (Respondent)
SOLICITORS:	Essex Legal (Appellant) Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2007/3825006
LOWER COURT JUDICIAL OFFICER:	Howie J
LOWER COURT DATE OF DECISION:	5 November 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	R v Shirley Justins [2008] NSWSC 1194