Obiter

Carter v Attorney-General (No 2) [2014] 1 Qd R 111

In Carter v Attorney-General (No 2),¹ the appellant, a heroin user, aided the deaths of two persons in accordance with their expressed wish to die. The Court of Appeal considered whether section 311 of the Criminal Code Act 1899 (Qld) was a complete code, and whether killing with the intention to kill, where the person desired death, is murder.

COURT: Queensland Court of Appeal (White JA, Atkinson and Martin JJ).

PROCEDURAL HISTORY: The appellant pleaded guilty to unlawfully supplying heroin to Smyth, and aiding his suicide contrary to s 311 of the Criminal Code Act 1899 (Qld) (‘Criminal Code’).² After a retrial, the appellant was convicted of the murder of Marke pursuant to s 302(1) of the Criminal Code and sentenced to life imprisonment. Appeals to the Court of Appeal were dismissed and the appellant unsuccessfully sought special leave to the High Court.³

FACTS:

The appellant, a heroin user, injected Marke with heroin in accordance with her expressed wish to die in this way.⁴ The appellant also prepared a syringe of heroin for Smyth, who self-administered it and died instantly.⁵ Marke was unconscious when the appellant left her, and was later found dead.⁶ The appellant later confessed to police⁷ and conceded that he knew he was taking their lives.⁸

ISSUES:

1. Whether s 311 of the Criminal Code is a complete code for purposes of ascertaining criminal responsibility where a person has caused the death of another who is desirous of death?⁹
2. Whether the trial judge erred by failing to direct the jury that, if the deceased was a substantial or significant contributing cause of their own death, the appellant could not be found guilty of murder, thereby resulting in a miscarriage of justice.¹⁰

RELEVANT LAW:

Criminal Code Act 1899 (Qld)

Section 302 of the Criminal Code Act 1899 defines murder, while s 300 makes murder a crime.¹¹ The elements of murder are:

1. the deceased is dead;
2. the accused killed the deceased;
3. the accused did so unlawfully;
4. at the time of the act which caused the death, the accused intended to kill or do grievous bodily harm.¹²

Section 302(1)(a) relevantly defines murder:

(1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say—
(a) if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;
… is guilty of “murder”.¹³

Section 311 provides for aiding suicide:

Any person who—
(a) procures another to kill himself or herself; or
(b) counsels another to kill himself or herself and thereby induces the other person to do so; or
(c) aids another in killing himself or herself;
is guilty of a crime, and is liable to imprisonment for life.¹⁴

Section 284 provides that consent to death immaterial:

Consent by a person to the causing of the person’s own death does not affect the criminal responsibility of any person by whom such death is caused.

Section 293 defines killing:

Except as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.¹⁵

Section 296 provides for acceleration of death:

A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.¹⁶

COURT’S REASONING:

White JA began with the traditional principles of causation, in which the appellant’s second appeal, McPherson JA observed that s 302(1) of the Criminal Code defines murder as “kills another”, while s 300 refers to murder and manslaughter more broadly as forms of homicide.¹⁷ White JA considered Royall v The Queen,¹⁸ where Brennan J said at 398:

The basic proposition relating to causation in homicide is that an accused’s conduct, whether by act or omission, must contribute significantly to the death of the victim … It need not be the sole, direct or immediate cause of the death.  However, when the death is not caused directly by the conduct of the accused but by something done by the victim or by a third person in response to the conduct of the accused, there is a question whether the chain of causation has been broken.¹⁹

The High Court in Royall v The Queen²⁰ explained that while there may be no single cause of the death of a deceased, at common law,²¹ Deane and Dawson JJ observed at 411:

… [I]f the accused’s conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder.²²

White JA said (at [47]) that:

No articulation of the concept of causation in the common law that supports the argument that where a person does the act, which is a significant or substantial cause of the death of another, and intends to do so, it is not murder, notwithstanding that moral, ethical or other persuasive forces might be operating on him or her.²³

In considering further the relevant provisions in their context in the Criminal Code, White JA noted that ‘the words “except as hereinafter set forth” in s 293 [killing] of the Criminal Code do not include a reference to s 311 [aiding suicide] but relate only to the defence provisions in ss 304, 304A and 304B‘.²⁴ In relation to consent and criminal responsibility, White JA said (at [48]):

By s 293, if an accused person causes the death of another they have killed that person. Consent, as mentioned, is irrelevant to the criminal responsibility of such an accused. To hold otherwise would be contrary to the fundamental underpinning of this part of the criminal law: that a human life is valuable.²⁵

It is not a defence to murder that the person consented to death according to s 296 of the Criminal Code.²⁶ Thus, a mercy killer can commit the offence of murder under s 302.²⁷ As White JA expressed (at [50]):

Accordingly, to kill someone by a positive act, with the requisite intention, even though that person expressed a desire to die, is murder.  The Criminal Code is clear.  Where a person desirous of death brings about their own death by their own act, any person who assists in that act of autonomy by the suicide, but does not do the deed, has aided the suicide.  The degree of moral responsibility may be reflected in the punishment which may be up to life imprisonment.²⁸

White JA noted (at [51]) that:

… [T]here are sound reasons in policy not just the application of legal analysis in preferring this result. … [A] person who desires to kill another may readily employ the “assist suicide” argument when murder was intended and against the wish of the victim; or a frail or elderly patient may be “persuaded” that it would be better to die.²⁹

DECISION AND ORDER:

The Court of Appeal dismissed the appeal unanimously (Atkinson and Martin JJ in agreement with White JA). The Court held that there is no concept of causation in the common law that supports the argument that where a person does the act, which is a “significant or substantial cause of the death” of another, and intends to do so, it is not murder: at [47].³⁰

To kill someone by a positive act, with the intention to kill, even though that person expressed a desire to die, is murder. Where a person desirous of death brings about their own death by their own act, any person who assists in that act of autonomy by the suicide, but does not do the deed, has aided the suicide: at [50].³¹

The primary judge was correct to dismiss the application because there is no argument that there has been a miscarriage of justice: at [52].³²

DISCUSSION:

In Carter v Attorney-General (No 2),³³ although the deceased had consented to their death, such consent did not absolve the appellant of criminal responsibility under s 284 of the Criminal Code (where consent is immaterial of death). The hastening of another person’s death under s 296 is deemed to constitute killing. Likewise, under s 293, a person who causes the death of another (directly or indirectly) by any means (e.g. injecting a lethal dose of heroin) is deemed to have killed that person. This applies irrespective of arguments based on mercy killing or persuasive justification.

By injecting Marke with a syringe containing a lethal dose of heroin, Carter, the appellant, acted with intent to kill and did so knowing that his conduct would result in Marke’s death and without lawful excuse. Accordingly, the act constitutes murder under s 302 of the Criminal Code. As White JA expressed at [50]: ‘To kill someone by a positive act, with the requisite intention, even though that person expressed a desire to die, is murder. The Criminal Code is clear’.³⁴

Smyth brought about their own death by injecting themself with heroin. Carter is criminally responsible for supplying the syringe of heroin to Smyth at his request, thus aiding Smyth’s suicide under s 311 of the Criminal Code. As White JA stated at [50]: ‘… any person who assists in that act of autonomy by the suicide, but does not do the deed, has aided the suicide’.³⁵

R v Morant [2020] QCA 135:

In R v Morant,³⁶ the Court of Appeal also considered the offence of aiding suicide under s 311 of the Criminal Code. The appellant, Morant, was convicted of two counts of aiding his wife’s suicide by counselling to kill herself and inducing her to do so.

Sofronoff P noted that it is an implicit requirement of s 311(c) that the aiding be done knowingly, intending to aid the person to kill himself or herself: at [10]–[15].³⁷ Sofronoff P said (at [22]): ‘… there was ample evidence from the appellant’s own mouth to demonstrate that his intention in doing the acts charged was to help Ms Morant in killing herself’.³⁸ The Court unanimously dismissed Morant’s appeal against conviction on all grounds and upheld his sentence of 10 years’ imprisonment. Boddice J said (at [248]–[249]):

… [T]he deceased was a vulnerable person with difficulties with her physical health, who was already suffering depression; and the fact that the appellant, by his conduct, took advantage of those vulnerabilities in order to persuade her to kill herself and then assisted her to do so.

In addition to those matters, the more serious aspect of the offences, counselling suicide, occurred over a period of months. Its seriousness was aggravated by the fact that the appellant had also aided the deceased to kill herself, being the end result of that extended period of counselling.³⁹

LEGAL CONSIDERATIONS (QLD):

At the time of judgment in Carter v Attorney-General (No 2)⁴⁰ (31 May 2013) and R v Morant⁴¹ (19 June 2020), there was no legal pathway for adults with a terminal illness to access voluntary assisted dying in Queensland.⁴²

Voluntary assisted dying:

The Voluntary Assisted Dying Act 2021 (Qld) came into effect on 1 January 2023.⁴³ It provides a legal framework for voluntary assisted dying, limited to eligible adults, such as those diagnosed with a terminal illness and expected to die within 12 months.⁴⁴ There are strict requirements for access and eligibility.⁴⁵ Voluntary Assisted Dying (“VAD”) under Schedule 1 means the ‘administration of a voluntary assisted dying substance and includes steps reasonably related to that administration’.⁴⁶

Attempted suicide remained an offence under former section 312 of the Criminal Code until 1979.⁴⁷ VAD is not considered “suicide” under the VAD Act (see s 8), and outside of the Act,⁴⁸ section 311 ‘aiding suicide’ of the Criminal Code still applies.⁴⁹

Palliative care:

In Queensland, an exculpatory defence is available for circumstances in which ‘palliative care’ incidentally hastens death, under s 282A of the Criminal Code.⁵⁰ In these cases, criminal responsibility is not attributed for a death that is incidental. ‘Palliative care’ under s 282A(5), is defined as an act or omission ‘directed at maintaining or improving the comfort of a person who is, or would otherwise be, subject to pain and suffering’.⁵¹

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FOOTNOTES:

1. Carter v Attorney-General (No 2) [2014] 1 Qd R 111 (‘Carter‘). ↩︎
2. Criminal Code Act 1899 (Qld) s 311 (‘Criminal Code‘); ibid 117 [4]. ↩︎
3. Criminal Code (n 2) s 302(1); Carter (n 1) 112; R v Carter [2002] QCA 431 (Court of Appeal); R v Carter [2003] QCA 515 (Court of Appeal). White JA stated that ‘[t]he appellant has appealed the dismissal of his application to review the decision of the Attorney-General not to refer his case to the Court of Appeal pursuant to s 672A of the Criminal Code following his unsuccessful petition to Her Excellency the Governor of Queensland to exercise the prerogative powers of the Crown to pardon him in respect of his murder conviction or, alternatively, to exercise the prerogative of mercy in his favour’, quoted from Carter, 116. ↩︎
4. Carter (n 1) 112 [2]. ↩︎
5. Ibid. ↩︎
6. Ibid. ↩︎
7. Ibid [3]; R v Carter [2003] QCA 515, [4]–[5]. ↩︎
8. Carter (n 1) [5]; R v Carter [2003] QCA 515, [5]. ↩︎
9. Carter (n 1) [25]; Criminal Code (n 2) s 311. ↩︎
10. See Carter (n 1). ↩︎
11. R v Smith (aka Stella) [2021] QCA 139, [23] per David J. ↩︎
12. Ibid. ↩︎
13. Criminal Code (n 2) s 302(1). ↩︎
14. Ibid s 311; see authorities for meaning of: ‘procure’: R v F; ex parte A-G [2004] QCA 70, [33]–[34]; R v Hawke [2016] QCA 144, [58]–[59], ‘counsel’: R v Georgiou [2002] QCA 206, [78]–[79]), ‘aid’: R v Sherrington & Kuchler [2001] QCA 105, [12], cited in Supreme Court of Queensland, Benchbook: 103A Aiding Suicide s 311 (Web Page, July 2024) <https://www.courts.qld.gov.au/>. ↩︎
15. Criminal Code (n 2) s 293. ↩︎
16. Ibid s 296. ↩︎
17. Carter (n 1) [37]. ↩︎
18. Royall v The Queen (1991) 172 CLR 378 (‘Royall’). ↩︎
19. Carter (n 1) [38]; ibid 398 (Brennan J). ↩︎
20. See Royall (n 18). ↩︎
21. Carter (n 1) [6]. ↩︎
22. Royall (n 18) 411. ↩︎
23. Carter (n 1) [47]. ↩︎
24. Ibid [48]; Criminal Code (n 2) ss 304, 304A, 304B. ↩︎
25. Carter (n 1) [49]. ↩︎
26. Eric Colvin, John McKechnie and Elizabeth Greene, Criminal Law in Queensland and Western Australia: Cases and Commentary (LexisNexis Butterworths, 9th ed, 2021) 154. ↩︎
27. Ibid. ↩︎
28. Carter (n 1) [50]. ↩︎
29. Ibid [51]. ↩︎
30. Ibid [47]. ↩︎
31. Ibid [50]. ↩︎
32. Ibid [52]. ↩︎
33. See Carter (n 1). ↩︎
34. Carter (n 1) [50]; ibid (n 26). ↩︎
35. Carter (n 1) [50]. ↩︎
36. R v Morant [2020] QCA 135. ↩︎
37. Ibid [10]-[15] per Sofronoff P (Mullins JA agreeing); Supreme Court of Queensland (n 14). ↩︎
38. R v Morant [2020] QCA 135, [15]. ↩︎
39. Ibid [248]–[249]. ↩︎
40. See Carter (n 1). ↩︎
41. [2020] QCA 135. ↩︎
42. Voluntary Assisted Dying Act 2021 (Qld) sch 1 (‘VAD Act‘). ↩︎
43. Ibid. The VAD Act received Royal Assent on 23 September 2021, with the remaining provisions commencing on 1 January 2023. ↩︎
44. VAD Act (n 42) s 2. ↩︎
45. Ibid pt 2–4. ↩︎
46. Ibid sch 1 (definition of ‘voluntary asssisted dying’). ↩︎
47. Andreas Schloenhardt and Joseph Lelliot, Criminal Law in Queensland: Principles, Offences and Defences (Thomson Reuters, 2020) 190. ↩︎
48. VAD Act (n 42) ss 140–146. Part 9 outlines offences relevant to the VAD Act e.g. s 141 Inducing a person to request, or revoke request for, voluntary assisted dying. ↩︎
49. VAD Act (n 42); ibid (n 47) 190–191. ↩︎
50. Criminal Code (n 2) s 282A; Eric Colvin, John McKechnie and Elizabeth Greene, Criminal Law in Queensland and Western Australia: Cases and Commentary (LexisNexis Butterworths, 10th ed, 2024) 73.  ↩︎
51. Criminal Code (n 2) s 282A(5); Colvin et al (n 50). ↩︎