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18
Court of Criminal Appeal 28 October 2010

Justins v Regina

[2010] NSWCCA 242

Also reported as (2010) 79 NSWLR 544 (2010) 204 A Crim R 315
Homicide
CRIMINAL LAW OFFENCES AGAINST THE PERSON HOMICIDE CRIMINAL LAW OFFENCES AGAINST THE PERSON MANSLAUGHTER

Citation: Justins v Regina [2010] NSWCCA 242
Court: New South Wales Court of Criminal Appeal
Date: 28 October 2010
Judge(s): Spigelman CJ, Simpson J, Johnson J

Background

The appellant was the de facto partner of a man diagnosed with Alzheimer's disease in 2003. His condition caused progressive cognitive decline, and he had on multiple occasions expressed a wish to die. In March 2006, the appellant placed an open bottle of pentobarbitone (Nembutal, a lethal sedative) and a glass within his reach. He poured and drank the drug himself, knowing it would cause his death.

The appellant was tried before Howie J in the Supreme Court on two counts: murder (Count 1) and aiding and abetting suicide (Count 2, in the alternative). During the trial, she offered to plead guilty to aiding and abetting suicide in full discharge of the indictment, but the Crown declined. The jury acquitted her of murder and returned a verdict of guilty on the alternative of manslaughter by gross criminal negligence.

The manslaughter verdict turned on the trial judge's direction that the jury could convict if satisfied that the deceased lacked the capacity to commit suicide and that the appellant was criminally negligent about that capacity. The appellant appealed the conviction. Sentence was not challenged.

  • Whether the trial judge's directions on "capacity to commit suicide" were legally erroneous
  • Whether possessing capacity to commit suicide requires a person to make an "informed decision" to take their own life
  • Whether the trial judge's omission of a key element (an act causing death attributable to the appellant) from written directions, while including it in oral directions, caused a mistrial
  • Whether it was erroneous to direct the jury that manslaughter could be established if a reasonable person would have made enquiries about the deceased's capacity
  • Whether manslaughter was available at all as an alternative to the murder charge on this indictment
  • Whether the Court should enter an acquittal or order a new trial

Decision

Directions on capacity. All three judges agreed that the question of the deceased's mental capacity was a legitimate framing of the causation issue: it determined whether the act causing death was that of the deceased himself or of the appellant. However, the trial judge's directions on capacity were found to be erroneous. His Honour drew five cumulative requirements from expert evidence and elevated them into legal prerequisites for an "informed decision" to take one's own life. The Court held that this transformed factual considerations into legal requirements, and that each of the five matters was capable of application far broader than simply determining who performed the act causing death.

"Informed decision" as a legal standard. Johnson J, with Simpson J agreeing, held that the concept of an "informed decision" is not apt to assess whether a person had capacity to decide to commit suicide. Similarly, requiring a "rational" decision for which a reason could be ascribed was not a useful legal standard. A person with capacity may choose to end their life on a basis that is ill-informed or not supported by conventional reason. Provided the decision was that person's own reasoned choice, the law treats the act as theirs and not as the act of another who provided the means.

Omission from written directions. The Court considered whether the failure to include the causation element in written directions (while it was covered in oral directions) caused a mistrial. This issue was resolved against the appellant on this ground, given the oral directions were adequate, but it contributed to the overall assessment that the trial miscarried.

New trial versus acquittal. The Court declined to enter an acquittal. It concluded that manslaughter by criminal negligence was not so implausible a charge that a retrial should be refused. The Crown would have the opportunity to determine whether to proceed and, if so, on what charges, including potentially both manslaughter and aiding and abetting suicide.

Orders Made

  • The appeal is allowed.
  • The conviction for manslaughter is quashed.
  • A new trial is ordered.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the mental capacity of a deceased person is a legally relevant consideration in assisted death cases because it determines whether the act causing death was performed by the deceased or the accused.
  • Elevating factual criteria drawn from expert evidence into cumulative legal requirements for "capacity" constitutes a misdirection: the trial judge's five-part test went well beyond what the law requires when assessing who caused the death.
  • The concept of an "informed decision" is not the correct legal standard for assessing capacity to commit suicide. A person with capacity may make a choice that is poorly informed or unconventional in reasoning, and the law may still treat that choice as their own act.
  • Where a conviction results from a misdirected jury, an acquittal is not automatically the appropriate remedy. A new trial may be ordered where the underlying charge is not implausible and where a properly directed jury could still return a verdict of guilty.
  • Criminal liability for manslaughter by gross criminal negligence arising from making a lethal drug available to another person remains a live question in NSW, subject to proper jury direction at any retrial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 8(1)

Cases:
- Regina v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269
- Nydam v R [1977] VR 430
- R v Taktak (1988) 14 NSWLR 226
- Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215
- The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232
- Dyers v R [2002] HCA 45; (2002) 210 CLR 285
- Pemble v The Queen (1971) 124 CLR 107
- Gammage v R (1969) 122 CLR 444
- Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519
- Brightwater Care Group (Inc) v Rossiter [2009] WASC 229
- Hunter and New England Area Health Service v A by his Tutor T [2009] NSWSC 761; (2009) 74 NSWLR 88
- Re T (Adult: Refusal of Treatment) [1993] Fam 95
- Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290
- Australian Capital Territory v JT [2009] ACTSC 105; (2009) 232 FLR 322
- H Limited v J and Anor [2010] SASC 176; (2010) 240 FLR 402
- In Re Davis [1968] 1 QB 72
- Clift v Schwabe (1846) 3 CB 437