Justins v Regina

The letter concluded that, on the information available to Dignitas, it was not able to help with an assisted 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 (1) If the Crown has proven beyond reasonable doubt that the deceased lacked capacity to commit suicide (definition of capacity is set out in the other document), then (a) if the Crown has proved beyond reasonable doubt that Shirley Justins knew that the deceased lacked capacity

You would find her guilty of murder OR (b) if the Crown has proved beyond reasonable doubt that Justins was criminally negligent about the deceased's capacity (definition of criminal negligence is set out in the other document) You would find her guilty of manslaughter OR (c) if you are not satisfied beyond a reasonable doubt that Justins either knew that the deceased lacked capacity or that she was criminally negligent about the deceased's capacity Then you would find Shirley Justins not guilty. (2) If the Crown has not proven beyond reasonable doubt that the deceased lacked capacity to commit suicide, 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 Then you would convict Shirley Justins guilty of aiding and abetting a suicide." 25 The second document was as follows: "THE ACCUSED JUSTINS MURDER The Crown must prove beyond reasonable doubt that the act of the accused caused the death of the deceased and at the time of that act the accused intended to bring about the death of the deceased. 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 (2) the accused knew that the deceased did not have that capacity at the time she made the glass of Nembutal available to him. If the Crown has proved both (1) and (2), it does not matter that the deceased himself drank the Nembutal in the glass and the accused is guilty of murder. 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 The Crown must prove beyond reasonable doubt all of the following: 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 Crown must prove beyond reasonable doubt that the act of the accused caused the death of the deceased … " 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: "… [T]he 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." (Emphasis added) 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."

Or that: " … 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 who was in mentally befuddled condition, who was in no condition to make a decision for himself whether or not he wanted to commit suicide. The Crown case is that [the appellant] had a strong financial motive to bring about his death and also a personal motive in wanting … Mr Wylie deceased." (AB 672-673, italics added) 141 The Crown prosecutor then proceeded to outline the relevant legal principles. He said: "So far as the charge of murder is concerned, the elements of the charge of murder in an ordinary murder case are very simple: a death caused by an act of the accused where the accused intended to bring about a death of the victim. That is in an ordinary murder trial. This case is a little bit more complex than that and in order to explain to you why it's a little bit more complex I think the best thing I can do is to give you an example which is little bit different from this case.

[He proceeded to give an illustration which it is unnecessary to reproduce]

So the elements of the charge of murder in this case are that:

Secondly, that he died because of an act for which [the appellant] was responsible, namely, make the Nembutal available to him; and

At the time [the appellant] had the intention that Graeme Wylie should die.

Ladies and gentlemen, so far as the murder is concerned in relation to [the appellant] the Crown alleges that [the appellant] made the Nembutal available to Graeme Wylie on the date of his death … by providing to him or making it available to him in some way with the intention that he would ingest it and die from it . The Crown does not allege that [the appellant] was physically present when Graeme Wylie died and … she may even have not been present when he ingested the Nembutal." (AB 673-675, italics added) 142 The Crown prosecutor then raised an issue which was to become a focal point of the trial. It concerned the capacity of Mr Wylie to make a decision to commit suicide. He said:

"In this case it should be said that in relation to the murder charge there are an additional two elements of the offence. The first additional element is that in order to be murder, at the time of his death Graeme Wylie did not have the mental capacity to exercise independent judgment to decide whether or not to commit suicide.

The second additional element is that in relation to each accused, that that accused knew or ought to have known that Graeme Wylie did not have the mental capacity to exercise independent judgment to decide whether or not to commit suicide." (AB 677) 143 The Crown prosecutor then dwelt at some length on the issue of capacity, and the evidence from which the jury might infer that the appellant (and Ms Jenning) knew that Mr Wylie lacked capacity to make a decision as significant as a decision to take his own life. 144 Shortly thereafter the Crown prosecutor began to outline the evidence he anticipated. 145 The Crown prosecutor told the jury that Mr Wylie and the appellant had, in 1987, commenced a de facto relationship; that, from about 1996 or early 1997, Mr Wylie's mental acuity began to decline; and that, in about 2003 (after a number of investigations) Mr Wylie was diagnosed as suffering from Alzheimer's disease. The Crown prosecutor then outlined a progressive decline in Mr Wylie's mental condition, to the point that, by 2005, he had become unable to care for himself or to follow simple instructions. His memory had significantly deteriorated; he was unable to make any significant decisions for himself. He said that Mr Wylie was "totally and utterly dependent" upon the appellant. He gave an account of attempted self-harm (by cutting his wrists) by Mr Wylie in September 2005, which was treated by a Dr Gupta (the appellant's general practitioner, but not the usual general practitioner of Mr Wylie). The Crown prosecutor said that the appellant made no request for counseling or treatment for depression for Mr Wylie. 146 He told the jury that the appellant, with Ms Jenning, attempted to arrange an assisted suicide with a Swiss organisation called Dignitas, which operates legally for that purpose in Switzerland. (He had earlier told the jury that both the appellant and Ms Jenning were members of Exit International, which he described as an association that supported suicide.) He told the jury that the appellant, Ms Jenning and Mr Wylie all completed applications to join Dignitas. He said that the appellant forwarded Mr Wylie's application, with the relevant fee. He said that, in October 2005, Dignitas sent some "instructional material" setting out its requirements in order to provide assistance to a suicide. Those requirements included evidence to show that Mr Wylie had the necessary mental competence to decide for himself that he wished to avail himself of the organisation's procedures. He told the jury that Mr Wylie's two daughters were persuaded to write letters of support. He said that the appellant obtained from Dr Gupta a certificate that Mr Wylie was suffering from Alzheimer's disease, and that the condition was incurable and would be expected to deteriorate over time. He said that the appellant did not tell Dr Gupta of the purpose for which she sought the certificate. (Although the Crown prosecutor did not say so explicitly, it is clear that he alleged that the appellant sent the certificate to Dignitas in support of Mr Wylie's application.) Dignitas required that an Australian doctor (Dr Nitschke) interview Mr Wylie. During the interview that followed, Mr Wylie told Dr Nitschke that he wanted to go to Switzerland "to end it". 147 Dr Nitschke reported to Dignitas, saying that Mr Wylie was: "… significantly affected by dementia and depends a great deal on his carer, [the appellant]. He was unable to recall his date of birth or number/sex of his children, etc … He retains significant insight though, and the realisation that his mental capacity is failing causes him a great deal of distress. He was adamant that he wished to go to Switzerland to end it. He wants to take this trip as soon as possible. He showed no confusion over contact with Dignitas and the purpose of the proposed trip." (AB 690) 148 There then followed a lengthy interruption of the trial, and the Crown prosecutor's opening, occasioned by the illness of a juror. The trial judge took the opportunity of raising with senior counsel for the Crown the "additional elements" of murder to which he had alluded. Following that discussion, when the trial resumed (four days later) the Crown prosecutor said: "Do you remember I said to you that, in this particular case, there were two additional elements to the charge of murder that applied to the unusual facts of this case. The first element was that Graeme Wylie did not have the mental capacity to exercise independent judgment to decide whether or not to commit suicide. The second additional element is this, that each of the accused knew that Graeme Wylie did not have the mental capacity to exercise independent judgment whether or not to commit suicide.

What I said to you on Monday is that that second additional element is that each of the accused knew or ought to have known that the accused [sic - deceased] didn't have that capacity. I want to withdraw those words 'ought to have known'. What that means is that the Crown, in relation to this charge, in order for there to be a conviction, has to prove beyond a reasonable doubt that each of the accused actually knew that Graeme Wylie did not have the requisite mental capacity to make that decision. It is not sufficient that somebody else might have realised it. There has to be proof that they actually knew." (AB 757-758) 149 The Crown prosecutor then resumed the outline of the facts he proposed to prove. He told the jury about a conversation between Dr Nitschke and Mr Wylie's daughter, Tanya, which prompted Ms Jenning to send an email to Dr Nitschke's partner. In that email Ms Jenning said: "I would suggest you advise [Dr Nitschke] to be wary of any future conversation with her, just in case we need to make more discreet decisions which we would not discuss with anyone at all outside of Graeme himself and his partner." (AB 760)

The Crown prosecutor then said: "Now, ladies and gentlemen, the Crown case is that this discreet decision, which may need to be made, was the thought that if the Dignitas organisation rejected Graeme Wylie's application for an assisted suicide, that there were other plans that these two accused had to themselves put Graeme Wylie to death . That is what they had in mind." (AB 760, italics added) 150 He told the jury that, by letter dated 9 December 2005, Dignitas rejected Mr Wylie's application. The author of the letter told Mr Wylie that the information available to Dignitas was "ambiguous". The letter went on: "It cannot be established with certainty to which extent your current abilities would comply with the legal and general requirements to fully carry the responsibility of an accompanied suicide …" (AB 761) 151 The Crown prosecutor then said: "The Crown case is that this letter unequivocally put both the accused on notice about Graeme Wylie's absence of capacity to make an informed decision himself, based upon an appreciation of all of those facts that I mentioned on Monday about whether or not to commit suicide." (AB 761)

He said: "Ladies and gentlemen, after the rejection by Dignitas, [the appellant] and Caren Jenning decided that, having failed to get the support of Dignitas, they would take matters into their own hands and themselves put Graeme Wylie to death . In fact, [the appellant] told [a daughter of Mr Wylie] shortly after receiving the Dignitas rejection, there are other ways. The Crown case is that the means that they decided upon was one of the method of that strongly promoted by Exit International, and that was the obtaining of Nembutal from Mexico, and the ingestion of that Nembutal bottle by the person concerned.

Ladies and gentlemen, as I mentioned, the Crown case is that these two accused decided on the … Mexican option. The Mexican option was an option which had been heavily promoted in Exit International literature and Exit International workshops. The accused Caren Jenning had attended one of those workshops, and you will have in evidence both a copy of the workshop handout, and a copy of the handwritten notes by Caren Jenning that were found at her home in an exercise book in her own handwriting where she made notes about the Mexican option, presumably whilst attending one of these workshops." (AB 762) 152 The Crown prosecutor went on to refer to Mr Wylie's will. He said that, in late December 2005, the appellant "decided that she would secure her own financial future" by "getting" Mr Wylie to change his will in her favour. His previous will had been signed in February 1995 and had divided his estate 50 percent to the appellant and 25 percent to each of his two daughters. 153 The Crown prosecutor repeated that, in January 2006, early plans were made for "the Mexican option", and for the change to Mr Wylie's will (AB 764). 154 The Crown prosecutor then referred to events that occurred on 25 January 2006. He said that the appellant left the home to see the solicitor who they had consulted about the will change; when she returned she found Mr Wylie collapsed on the floor of his workshop complaining of back pain. This appears to have been the result of a fall. The Crown prosecutor said that the appellant left Mr Wylie lying on a mattress for almost 5 hours before arranging for an ambulance to attend. He said that this was because she hoped that he would die. 155 The Crown prosecutor also said, more than once, that the appellant was attempting to prevent others, including his daughters, having any influence over Mr Wylie. He said it was not until 5 days after his fall, at a time when Mr Wylie was still an inpatient in a hospital, that the appellant first informed one of his daughters of his hospitalisation. 156 The Crown prosecutor went on to tell the jury that neither the appellant nor Ms Jenning was interested in "re-engaging" with Dignitas. He said that the reason for that, on the Crown case, was that they already had "the Mexican option" in mind and: "… that they themselves were going to put Graeme Wylie to death ." (AB 766, italics added)

The Crown prosecutor then told the jury of arrangements made for Ms Jenning to travel to Mexico to obtain Nembutal. 157 He said that, on Mr Wylie's discharge from the hospital, aftercare had been offered to the appellant, but that the appellant was "completely disinterested" in any such assistance. He said: "The Crown case is that the reason why is that she knew already at that stage that Graeme Wylie did not have long to live." (AB 767)

He then recounted a third attendance on Dr Gupta, for the purpose of obtaining Maxolon, for which Dr Gupta issued a prescription. 158 He outlined travel by Ms Jenning to Mexico, leaving on 13 March. 159 The Crown prosecutor said: "On 22 March 2006, having made provision for [the appellant's] financial future, having obtained the Nembutal and Maxolon, having organised a story to give to a doctor as to what might have caused his death, the Crown case is that everything was in place for putting to death Graeme Wylie ." (AB 770, italics added) 160 He then described alibis that he said were carefully constructed by the appellant and Ms Jenning for the time Mr Wylie was expected to ingest the Nembutal and die. He said that on the morning of 22 March, in accordance with those arrangements, the appellant went out with a friend; that on her return home, Mr Wylie was sitting on the lounge in the main living room, dead. He said that the appellant attempted to obtain a death certificate but was unable to do so, and it was necessary that police be called. 161 He said that Mr Wylie was seated on the lounge, in front of which was a coffee table on which there was toast and tea. Elsewhere in the house was a partially used packet of Maxolon. When police attended, the appellant told them that nothing had been touched after she returned home. There was no trace of any Nembutal anywhere in the house, including the garbage bin, and no trace of any bottle of Nembutal having been thrown away. 162 The Crown prosecutor then said: "In this case, the Crown alleges that both accused embarked on a plan to bring about the premature death of Graeme Wylie and that they also planned at the same time to change Graeme Wylie's will so as to provide the vast bulk of his estate to [the appellant], at the expense, I might add, of his two daughters." (AB 774) 163 He then referred to some evidence of subsequent events in which, he said, Ms Jenning attempted to fabricate evidence to suggest that Mr Wylie's mental condition was not as serious as he had outlined. This, on the Crown case, was for the purpose of a dispute over Mr Wylie's estate and it is unnecessary to take up further time on it in this judgment. 164 The Crown prosecutor concluded his opening by saying: "In summary, the Crown case is that these two accused put to death a very sick, feeble, confused and dependent old man and that at the time it suited them to do so and accorded with their philosophy. At the time, the Crown alleges, he was vulnerable to their suggestions and unable to comprehend the magnitude of what was proposed. It is alleged that at the time of his death [the appellant] had a gross conflict of interest, in that she stood to gain financially from his death in a very substantial way. The Crown case is that these were not actions out of loving kindness but actions that were misguided and certainly, in the case of [the appellant], out of self-interest." (AB 777, italics added) 165 Counsel for each accused then briefly opened to the jury and the trial proceeded. 166 A psychiatrist, Professor Peisah, gave evidence about the ordinary progress of Alzheimer's disease. She gave a definition of "testamentary capacity". Although she had never seen Mr Wylie, she said that he had no capacity to plan a suicide. Professor Peisah's evidence is more fully set out in the judgment of Johnson J. 167 The evidence given in the Crown case did not deviate substantially from what had been outlined in the Crown prosecutor's opening. Since, when the appellant was interviewed by police on 8 September 2006 - 7 months after Mr Wylie's death - she denied any involvement in his death, the Crown had available to it no direct evidence of the events of 22 March. 168 On 19 May, the eleventh day of the trial, and still in the course of the Crown case, both accused were re-arraigned on the same charges as previously. The appellant maintained her plea of not guilty to the count of murder but entered a plea of guilty to the count of aiding and abetting a suicide. The Crown declined to accept this plea in full satisfaction of the indictment. (Ms Jenning pleaded guilty to the charge of importing, but maintained her pleas of not guilty to the other two counts.) 169 The Crown case closed on 29 May 2008. The appellant gave evidence on that day, and on 2, 3 and 4 June. She gave an account of her relationship with Mr Wylie, and of his mental deterioration. She said that he received the diagnosis of Alzheimer's disease on or about 29 March 2003. She said that the diagnosis devastated him, and that he immediately expressed an intention to commit suicide. She gave evidence of his attempt at suicide by cutting his wrists (on 20 September 2005). She gave evidence of inquiries made by her, at Mr Wylie's request, about travelling to the Netherlands, because he believed that legal euthanasia was available in that country. She confirmed the evidence given in the Crown case about her contact with Dignitas, the interview with Dr Nitschke, and the rejection by Dignitas. She gave evidence of another attempt, on 2 February 2006, by Mr Wylie, with her co-operation, to commit suicide, this time by using an old lawn mower to poison himself with carbon monoxide. (There is some confusion in the evidence as to whether this is the same event, on the Crown case on 25 January, of the fall in the workroom.) The attempt at suicide failed; eventually, at Mr Wylie's request, the appellant called an ambulance. She then gave evidence of discussions with Ms Jenning concerning Ms Jenning's travelling to Mexico for the purpose of obtaining Nembutal. She said that she obtained a prescription for Maxolon from Dr Gupta. She said that Mr Wylie participated in various of the conversations. She said: "He was looking forward to … for Caren to go there and come back, and so he could end his life peacefully" (AB 1795)

and: "He said to me that he was looking forward to ending his life, and I said 'Well, it won't be - won't be long now'." (AB 1796) 170 She gave evidence that, on 18 March, Ms Jenning returned to Australia from Mexico, and that the appellant met her at the airport. There Ms Jenning gave the appellant Nembutal, which the appellant took to her home. 171 She gave evidence of conversations with Mr Wylie, in which he said that he wanted to take the Nembutal as soon as possible, but that Ms Jenning said that he had to wait at least two days in order for the Maxolon to take effect. 172 She told of the events of the evening of 21 March, when, she said, she and Mr Wylie had a meal, and a conversation. She then gave evidence of the events of 22 March. She said that she woke at about 7 o'clock, and told Mr Wylie that he needed to get up so she could give him another Maxolon tablet. She said she had breakfast and then brought out the bottle of Nembutal, which she had already opened. She placed the open bottle of Nembutal and a glass in front of Mr Wylie, and said to him: "This will relieve your pain Graeme. If you drink this you will die." (AB 1813) 173 She said that he said "Yes" and poured the Nembutal into the glass and told her that she was "a brick". She said that she said to him "I want to come too" but he replied "No, I've got to do this alone". He then drank the Nembutal. She said that she took the glass from his hand and put it on the table and suggested to him that he might be more comfortable lying on the couch; however, when she turned back to him he had already died. She said she took the glass and the bottle of Nembutal and put them separately wrapped in plastic bags and a tea towel in her shopping basket. She left the house, pursuant to arrangements she had already made (which were plainly for the purpose of establishing an alibi for the time of Mr Wylie's death). 174 She returned to the house and telephoned the medical practice she had previously attended. The doctor came to the house but was unable to issue a death certificate. She telephoned a funeral parlour, and was advised to contact police. This she did, and police attended. 175 It will be seen that the account given by the appellant, although containing detail previously unknown to the Crown, was substantially in accord with the Crown case as to what had in fact happened. Indeed, leaving aside the disputed issues concerning Mr Wylie's mental capacity, and the appellant's knowledge (or perception) of it, the appellant's evidence essentially confirmed and fleshed out the Crown case. 176 Cross-examination of the appellant by the Crown was directed to establishing that the appellant deliberately set out to bring about Mr Wylie's death, and that she knew that he had reached a state in which he was incapable of making a decision to take his own life. 177 Until the appellant gave evidence, the Crown case was substantially, if not entirely, circumstantial. The nature of the Crown case did not alter after she had given evidence. 178 Cross-examination by the Crown prosecutor began on 3 June. The following day, in the closing stages of the trial, the Crown raised for the first time the possibility of leaving to the jury an alternative count of manslaughter. At that time, the Crown prosecutor had in mind manslaughter by unlawful and dangerous act. 179 The trial judge was unreceptive to the proposal to leave manslaughter by unlawful and dangerous act, but was willing to entertain the prospect of leaving manslaughter by gross criminal negligence (AB 2018-2019). From time to time thereafter there was discussion about the basis on which manslaughter might be left. It appears to have been assumed that manslaughter in one of its forms, was an available alternative verdict. Senior counsel for the appellant at trial does not appear to have raised any objection. Ultimately, his Honour declined to leave manslaughter by unlawful and dangerous act, but, in the event, left criminal negligence manslaughter. 180 On 10 June a third indictment was presented. No alteration was made to the charges against the appellant. The new indictment added a fourth count against Ms Jenning, a count of being an accessory to manslaughter. Ms Jenning entered a plea of not guilty to that charge. 181 The trial judge explained to the jury that it was unnecessary for the Crown specifically to plead the alternative count of manslaughter to the murder count alleged against the appellant, but it was necessary to formalise the corresponding count against Ms Jenning. 182 Thereafter, the trial appears to have proceeded on the basis that the events of 22 March were substantially as described by the appellant - that is, that she had made available the Nembutal to Mr Wylie, and that she had done so in the knowledge that he would consume it, and that if he did so it would cause his death, and (most importantly) that that was her explicit intention. 183 The Crown adduced a good deal of circumstantial evidence relevant to the appellant's intention - the changing of the will (to her advantage), the alleged failure to obtain, or tardiness in obtaining, assistance for Mr Wylie after his two attempts at suicide, her membership of Exit International, and her knowledge of the effects of Nembutal, to name a few. After the appellant's evidence, it was unnecessary, in order to establish intention, to rely on circumstantial evidence - it was quite clear that the Crown case and the defence case in this respect entirely coincided. Even if her evidence had not, the plea of guilty to the charge of aiding and abetting a suicide confirmed that conclusively. 184 The defence evidence was, as I have said, completely consistent with the case the Crown prosecutor had opened, with the additional detail, previously unknown to the Crown, that emerged from the appellant's evidence. 185 At an early stage in the trial, the central issue was identified as Mr Wylie's capacity to make "an informed decision" to end his life. This was perceived to be the key to the murder count, and, when it emerged, also the manslaughter count. This was because, as was recognised, the act that caused Mr Wylie's death was the act of consumption of the Nembutal. But the underlying question was whether that act could properly be said to be Mr Wylie's act, made in the exercise of his own will. If he lacked the capacity to make "an informed decision" to consume the Nembutal (knowing that it would end his life) then the act could not properly be seen as his. If the Crown established, to the requisite level of proof, that he lacked that capacity, then another act causing death must be identified. This, on the Crown case, was the appellant's act in providing him with the Nembutal, in the knowledge that he lacked the necessary capacity to make his own decision. 186 Following the arraignment of the two accused on the third indictment, the transcript records that the trial judge said: "So, for murder, the Crown must prove beyond reasonable doubt the act of the accused causing the death of the deceased; and that it caused the death of the deceased; and at the time of the act the accused intended to bring about the death of the deceased.

The charge is a little curious in this particular factual case because the evidence is that the accused, that's [the appellant], gave Mr Wylie the bottle containing the Nembutal in (sic - and) 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." (AB 2230) 187 He then borrowed an illustration previously used by the Crown prosecutor, and said: "It's a bit like giving poison to granny in a cup, as I think the Crown explained it … So, if you put poison in a cup of hot chocolate and give it to granny at night and she drinks it and dies, she drank from the cup, and, to some extent, you might think that's her act. But she didn't voluntarily drink the poison and she didn't know that there was poison in the cup; it is the act that caused her death, which is the act of placing the poison in the cup unbeknownst to her, which is the act of the poisoner, not the act of the drinker." (AB 2230)

He went on to say: "The same as here, if you look at the act here of the accused (sic - Mr Wylie), in drinking from that glass, of not appreciating the consequences of what he was doing - like granny didn't know that there was poison in the glass - if he didn't know, that is the deceased, or have that understanding and be able to make an informed decision as to whether or not to drink from Nembutal and thus end his life, the law doesn't consider it is his act that caused his death but, rather, her act." (AB 2231) 188 He then gave some further direction which it is unnecessary here to recount. Trial addresses began. 189 At an early stage in his closing address, the Crown prosecutor identified to the jury what he called "the two central issues" as: "(1) Did Graeme Wylie lack the capacity to commit suicide at the time of his death; and

(2) Did the accused know about it?" 190 He then mentioned a "subsidiary question" with respect to the manslaughter count, as: "… did [the appellant] act with criminal negligence in failing to adopt that standard of care of a reasonable person?" 191 He then devoted almost the entirety of his address to establishing the twin propositions that Mr Wylie did not have capacity to make a decision to commit suicide, and that the appellant was well aware of that circumstance. 192 His principal focus was on the charge of murder (with respect to the appellant) and accessory to murder (with respect to Ms Jenning). He made virtually no reference to the element of intention, no doubt because he relied upon what was implicit, if not explicit, in the appellant's evidence. 193 It is unnecessary to refer to any more of the address. It is unnecessary to refer to the defence addresses.

The summing up 194 The theme concerning Mr Wylie's capacity was repeated throughout the summing up. His Honour said, at an early stage: "But, just briefly, if you are satisfied beyond reasonable doubt by the Crown that Mr Wylie did not have the capacity to make an informed independent judgment about wanting to die, then it cannot be suicide, because, if you remember, if he lacked the capacity to make an informed independent decision about whether to take his own life, he cannot take his own life, in law. So, if you came to the view that he did not have capacity beyond reasonable doubt but were not satisfied of the other facts you have to find for murder or manslaughter, then in fact you cannot find either of them guilty of aid and abet suicide." (AB 15) 195 His Honour gave detailed directions to which it is not necessary to go, before turning to the specific offences. He dealt firstly with murder, with respect to which, he said: "The first fact that the Crown must establish is that the accused brought about the death of the deceased and that, at the time of doing that act, the accused intended to bring about the death of the deceased." (AB 46)

He told the jury that it was necessary to elaborate on that, and referred specifically to the evidence of the appellant of giving Mr Wylie the Nembutal and his consumption of it. He went on say that, in this case, the relevant question was: "… whose act it was that caused death." (AB 47) 196 He repeated his illustration of a person giving poison to another person, who, unaware of the poison, drinks it. He said again that the real issue was whether it was the appellant's act that killed Mr Wylie. He said that the issue was not whether Mr Wylie knew there was a drug in the drink which would bring about his death; the Crown had never suggested that he was tricked into consuming the Nembutal, or that he was ignorant of the contents of the bottle. He said that the Crown could not prove beyond reasonable doubt that Mr Wylie was not aware that he was drinking a drug which would bring about his death. He said: "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 [the appellant's] 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 … Mr Wylie lacked the capacity to make a judgment as to whether or not to drink the Nembutal and cause his death." (AB 47-48, italics added) 197 He drew an analogy with a very young child, who might, in a simplistic childlike way, appreciate the difference between life and death, but who, it would be assumed, would lack the capacity to make such a decision. He referred to much of the evidence that had been given, and repeated that the question was: "Has the Crown satisfied you beyond reasonable doubt that he did not have capacity? And secondly, has the Crown proved to you beyond reasonable doubt that [the appellant] knew that he didn't have capacity?" (AB 57)

He added: "Because, if it proves those two facts, it proves that the act causing the death of Graeme Wylie was not his act, not in law and probably not as a matter of common sense, it was [the appellant's] act. And because that act was done with the intention that he would die, causing his death - and there is no dispute about that, that was the whole purpose of it - therefore she is guilty of murder." (AB 57-58, italics added) 198 That concluded the directions on murder. His Honour then turned to the charge of manslaughter. He said: "… negligence here is what the Crown is alleging, firstly, that [the appellant] acted negligently. Negligence is a legal concept. [The appellant] does not have to know that she is being negligent. Negligence is a legal concept that is based upon two matters: a duty of care and a breach of that duty of care." 199 He made mention of other forms of negligence, and expanded on the concept of duty of care. He told the jury that there was no dispute that at the time of Mr Wylie's death and in the preceding months, the appellant owed a duty of care to Mr Wylie. 200 He told the jury that breach of duty occurs where there is a failure to act reasonably in relation to the person to whom the duty is owed. He explained the duty of care in this way: "What it means is that you have a duty to ensure … as far as is reasonably necessary, to ensure that the vulnerable person does not harm himself." (AB 64) 201 He told the jury that lack of capacity in Mr Wylie was, in the case of manslaughter as of murder, fundamental. He then said: "The Crown argues that a reasonable person, in the position of [the appellant], 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." (AB 65) 202 He said that, for the offence of manslaughter, it was not necessary for the Crown to prove that the appellant knew that Mr Wylie lacked that capacity; he said that was an issue for the offence of murder and not an issue for the offence of manslaughter. 203 There was then a discussion in the absence of the jury in which the Crown prosecutor said: "The breach of the duty must be the cause of death. So we submit that here the breach of the duty is providing the Nembutal where a reasonable person would either have realised that the deceased lacked capacity, or would have made further inquiries to find out, so that the breach is actually the provision of the Nembutal, without making inquiries that a reasonable person would have made … The breach is actually the provision of the Nembutal." (AB 70)

His Honour appears to have accepted that, and said: "It is the failure to make inquiries before the provision of the Nembutal."

The Crown prosecutor assented to that, and added: "… a reasonable person would have realised, based upon what the accused knew, that he lacked the capacity." (AB 71) 204 There followed a discussion about the circumstances that would establish lack of capacity. (These are set out in written directions, to which I will come in due course.) 205 This exchange, which is of considerable importance, then occurred: "HIS HONOUR: … there is no suggestion that he did not understand life and death, is there?

HIS HONOUR: Right. So there is no dispute that he did not understand that if he drank the Nembutal he would die, is there?

HIS HONOUR: Well, the dispute is only about whether he had the capacity to make an informed judgment.

CROWN PROSECUTOR: That's right …" (AB 71-72) 206 On resumption, in the presence of the jury, his Honour referred to the circumstances that were relevant to the question of capacity. He returned to the question of manslaughter and told the jury that the appellant could have been 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 inquiries as to whether or not he did have capacity." (AB 83) 207 Prior to the summing up, his Honour provided the jury with several written directions. These, so far as the appellant is concerned, were headed "MURDER", "Capacity to commit suicide", "MANSLAUGHTER", and "Aiding and abetting". They were as follows: " MURDER

The Crown must prove beyond reasonable doubt that the act of the accused caused the death of the deceased and at the time of that act the accused intended to bring about the death of the deceased.

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

(2) the accused knew that the deceased did not have that capacity at the time she made the glass of Nembutal available to him.

If the Crown has proved both (1) and (2), it does not matter that the deceased himself drank the Nembutal in the glass and the accused is guilty of murder.

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

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 it[s] 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;

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

The Crown must prove beyond reasonable doubt all of the following

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

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

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

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;

that the failure of the accused to make such inquiries was a breach of the duty she owed to the accused (sic - deceased);

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

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

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." 208 There was also a document headed "AVAILABLE VERDICTS" which is set out in the judgment of the Chief Justice. 209 In summary, the issues were left to the jury in this way:

(i) the appellant was guilty of murder if: ● her act caused Mr Wylie's death; and

● at the time of the act she intended to cause his death; and

● at the time of the act she knew that he lacked capacity to make an informed decision to end his life.

[Understandably, in the circumstances, little, if any, attention was paid to the question of the appellant's intention. That was because no possible issue existed in that respect.]

(ii) the act causing death was not the appellant's act if Mr Wylie had capacity to decide to commit suicide; if Mr Wylie lacked that capacity, the act causing death was the act of the appellant in providing him with Nembutal if she knew that he lacked that capacity.

(iii) Mr Wylie had capacity to decide to commit suicide if all of the tests set out in the written direction were satisfied - ie if: 1. he knew the extent of his illness and its prognosis;

2. he understood the nature of the act of suicide and its consequences;

he comprehended the benefits and disadvantages of the alternatives (life and death);

he was able to weigh the benefits and advantages and decide between them;

he was able to communicate that decision, and that

the decision was independently his, even if taken with the advice of others. 210 That Mr Wylie lacked capacity to decide to commit suicide was an element of both murder and manslaughter as left to the jury. 211 On 19 June the jury returned the verdicts I have mentioned above. 212 The jury's verdict can be deconstructed. If murder alone had been left, it would be impossible to know if the acquittal on that count was because the Crown failed to prove that Mr Wylie lacked capacity, or failed to prove that the appellant knew that he lacked capacity. But the verdict of guilty on the manslaughter count shows that the jury found that Mr Wylie lacked capacity. Therefore, the acquittal of murder was because the jury were not satisfied that the appellant knew of that lack of capacity.

The grounds of appeal 213 The grounds of appeal originally pleaded were: "Ground 1: The trial miscarried because the concept of 'capacity to commit suicide' was elevated to an element of the offence of manslaughter contrary to law.

Ground 2: The trial miscarried because the jury was not instructed that they needed to find beyond reasonable doubt that the act of the accused caused the death of the deceased.

Ground 3: The trial miscarried because an expert witness gave evidence about the content of a legal standard, namely causation, outside her area of expertise.

Ground 4: The trial miscarried because the jury did not receive proper directions on the assessment of the duty and standard of care.

Ground 5: The trial miscarried because the jury was informed that they should convict the accused if she failed in her duty of case (sic - care) to supervise a suicide.

Ground 6: The Crown prosecutor's final address gave rise to a miscarriage of justice by reason of distracting and inappropriate factual analogies, inflammatory and prejudicial comments and the expression of personal opinion."

On the hearing of the appeal the appellant was granted to leave to add two further grounds, formulated as follows: "(7) 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.

(8) The trial miscarried because the jury were inadequately and erroneously directed in relation to the elements of manslaughter by gross criminal negligence." 214 It will be observed that no ground challenges the availability of a verdict of manslaughter as an alternative to the charge of murder. The relevant grounds concern the directions that were given to the jury. 215 After the hearing of the appeal, while judgment was reserved, the Court invited further submissions from the parties with respect to three specified questions. The questions involved:

● the availability of manslaughter by criminal negligence as an alternative verdict (under this question, the Court pointed out that the Crown case against the appellant was "unequivocally" that Mr Wylie's death would result from the provision of Nembutal, and posed the question whether, in those circumstances, manslaughter was an available alternative verdict);

● a series of questions concerning the written directions given with respect to criminal negligence;

● the written directions as to "informed" consent. 216 Further submissions were received from both parties. On behalf of the appellant it was submitted that: "… involuntary manslaughter is not an appropriate or available verdict where the Crown alleges that the accused caused death by an intentional act with the knowledge that death was the inevitable result"

and that: "… the Crown case with respect to manslaughter amounted to an allegation that the appellant had engaged in an intentional homicide … such an allegation is not consistent with the doctrine of involuntary manslaughter." 217 Notwithstanding that submission, no application was made on behalf of the appellant further to amend the grounds of appeal; specifically, no application was made to add a ground of appeal challenging the availability of manslaughter as an alternative verdict. 218 Nevertheless, this is the question which, it seems to me, most clearly isolates the real issue in these proceedings. I will return to this.

MANSLAUGHTER 219 No mention was made by either party of s 18 of the Crimes Act 1900. Nevertheless, that section, it seems to me, is the proper starting point of this debate. In that section the offence of murder is defined. 220 There is no statutory definition of the offence of manslaughter. The generic offence, of which murder and manslaughter are both species, is homicide: R v Downs (1985) 3 NSWLR 312 at 327, per Smart J). 221 Section 18 of the Crimes Act is the section that deals with homicide. Section 18(1) provides as follows: "18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter." (italics added) 222 There are two categories of manslaughter, known as voluntary and involuntary manslaughter: see Wilson v The Queen [1992] HCA 31; 174 CLR 313. Voluntary manslaughter is committed where a killing which would otherwise amount to murder is reduced by reason of some circumstance provided by statute - provocation (Crimes Act, s 23), substantial impairment by abnormality of mind (s 23A) or excessive self defence (s 421). None of these has any present application and they can be put to one side. 223 Two categories of involuntary manslaughter are recognised by the common law. They are manslaughter by unlawful and dangerous act, and manslaughter by criminal negligence. The elements of manslaughter by criminal negligence are:

(i) that the accused owed a duty of care to the deceased;

(ii) that the accused acted in breach of that duty (whether by act or omission);

(iii) that the act or omission amounting to breach of duty caused (or accelerated) the death of the deceased;

(iv) that that act merited criminal punishment because: (a) it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and

(b) it involved such a high risk that death or really serious bodily harm would follow; and

(c) that the degree of negligence involved in the conduct is so serious that it should be treated as criminal conduct. 224 The offence of manslaughter by criminal negligence builds upon the tort of negligence in the civil law (with the important addition of the element that the negligence must be so grave as to warrant criminal punishment). A discussion of this is to be found in an article entitled "The Duty of Care in Gross Negligence Manslaughter", Jonathan Herring and Elaine Palser, [2007] Crim Law Rev 24. That being so, it is instructive to have regard to the legal principles that apply to the tort. 225 The four basic elements of the tort are:

(iv) a causal connection between the breach and the injury. 226 That means that to establish criminal negligence manslaughter, five questions are pertinent:

(i) did the accused owe to the deceased a duty of care?

(iv) what, in precise terms, was the breach of duty?

(v) was the death of the deceased causally connected to the breach of duty?

(vi) was the breach of duty of such grave proportions that the accused ought to be held criminally liable? 227 Whether, in particular circumstances, a duty of care exists has been the subject of much judicial discussion in recent years. Except for one matter to which I will come, however, that need not here be explored. The judge directed the jury, without dissent from senior counsel, that the appellant did not contest that, at the date of his death, she owed Mr Wylie a duty of care. 228 For the tort of negligence, it is essential that there be identity between the act or omission said to constitute the breach of duty, and the act or omission said to cause the harm: ie, it is essential that the act or omission that amounts to a breach of duty is the act or omission that causes harm. 229 The same applies to the crime of manslaughter by criminal negligence. It is essential that the act or omission that constitutes the breach of duty is the act or omission that causes death. 230 With that preliminary, I move to the grounds of appeal. 231 I propose to begin with a consideration of grounds 2 and 8 of the appeal. In respect of ground 2, I have come to a different view to that of the Chief Justice.

Grounds 2 and 8 232 By ground 2 the appellant complains that the trial miscarried because the jury was not instructed, with respect of the manslaughter count, that it was necessary for the Crown to prove that the act of the appellant caused the death of Mr Wylie. By ground 8 she complains, in general terms, of the directions with respect to gross criminal negligence. 233 A direction of the kind the subject of ground 2 was included, both orally and in writing, in respect of the murder count. 234 Such a direction was not included in the written directions in respect of the manslaughter count. Whether that omission was adequately rectified in the oral directions is the issue on which I depart from the view of the Chief Justice. 235 The causation question in this case had an unusual feature. It was common ground (at least by the end of the trial) that Mr Wylie had voluntarily consumed the Nembutal; and that, within whatever limits existed on his reasoning capacity, he knew and intended that that consumption would cause his death. On a simplistic level, that would have meant that the act causing death was his own, however complicit the appellant may have been in facilitating that act. 236 But the trial proceeded on the basis that the act of consuming Nembutal was not that of Mr Wylie if he lacked the capacity to make an "informed" decision to take that course. (I have some conceptual difficulties with the approach that incorporates the notion of "informed" decision, but I will come to that.) 237 In respect of murder, the trial judge directed the jury: "The first fact that the Crown must establish is that [the appellant] brought about the death of the deceased and that, at the time of doing that act, [the appellant] intended to bring about the death of the deceased." 238 One paragraph later, his Honour made it clear that the act of the appellant upon which reliance was placed was the act of providing Mr Wylie with the bottle containing the Nembutal. 239 He went on to direct the jury: "Now, the question of murder , as I think I explained to you, is a question of whose act it was that caused death … Now, the real issue here is whether it is [the appellant's] act that killed the deceased." (AB 47, italics added) 240 When he came to manslaughter, he gave the directions to which the Chief Justice has referred at [40]. They focussed, again, on Mr Wylie's capacity. All that was said about an act causing death was: "That has to be found for manslaughter, because, if he has the capacity, then it is suicide." 241 This may be taken to hark back to the directions given in relation to murder, but, in my opinion, it would take a very astute juror to make that connection. The direction extracted in the Chief Justice's judgment at [40] did not, in my opinion, bring home to the jury the critical importance of identifying the act of the appellant said to have caused death. 242 Written directions are, in my opinion, are a most useful, important, and, in some cases, crucial, development in the conduct of criminal trials. That is, in part, because of the increasing complexity and length of criminal trials. It is also a recognition that juries, in the past, were expected, in an unfamiliar environment, to absorb what amounted to a lecture on legal theory (sometimes of considerable complexity) and the facts of the particular case, and that this was unfair both to the jury and to the accused (and sometimes also to the Crown). But it must also be remembered that a jury will have the written directions in the jury room long after the oral directions have concluded. It will be written directions to which the jury will have resort, perhaps repeatedly. And the force of the written word will be likely to override the recollection the jury has of the oral directions. 243 In my opinion, here, the written directions on manslaughter had the capacity to operate as a checklist. The omission from that checklist of any direction on the need to establish a causal link between any act or omission of the appellant, and the death of Mr Wylie, effectively deflected the jury from considering that question. In my opinion, the omission of a reference to the essential element of causation in the written directions was critical, and warrants the upholding of ground 2. 244 But the omission has an additional importance. The additional importance is this: had the written directions included reference to the element of causation, the jury would have been directed to identifying the precise act or omission (in this case, act) of the appellant said to have caused death. 245 Instead, the written directions identified the breach of duty - ie the act or omission of the appellant - as her failure to make inquiries to determine whether Mr Wylie had the necessary capacity. Failure to make inquiries was never relied upon as an act causing death, and nor could it have been. Thus, the absence of a direction on the element of causation drew attention from the identification of the act said to have caused death; the directions in fact nominated as the breach of duty an omission that was incapable of being a cause of death. 246 I would uphold ground 2 of the appeal. If that were all, the appropriate result would be to order a new trial. There is, however, a more fundamental reason, why, in my opinion, the appeal must be upheld, and a verdict of acquittal of manslaughter entered. 247 Once attention was properly focussed upon the identification of the act of the appellant said to have caused death, it would have become apparent that that act was, not the failure to make inquiries about Mr Wylie's capacity, but the provision to him of the Nembutal. And, as that act, on the Crown case, was unequivocally done with the intention of causing death, for the reasons that follow, the Crown allegation was, not manslaughter, but murder. 248 I have concluded that manslaughter was not, in this case, available as an alternative verdict to the charge of murder. That is, fundamentally, because it was, at all times, the Crown case (and, indeed, the appellant's case) that her act of providing Mr Wylie with the Nembutal was accompanied by an intention to cause his death. 249 I return to the words of s 18 of the Crimes Act. Relevantly, that section provides: "(1)(a) Murder shall be taken to have been committed where the act of the accused … causing the death charged, was done … with intent to kill … some person … (b) Every other punishable homicide shall be taken to be manslaughter." (italics added) 250 Thus, it may simply be said, on the clear words of s 18(1), that an act done with intent to kill is murder; every other punishable homicide is manslaughter. In The Queen v Lavender [2005] HCA 37; 222 CLR 67, the majority referred to s 18, and said that it is necessary to look to the common law to understand what is meant by "other punishable homicides". 251 In this case there was no other punishable homicide. The act done by the appellant was done with clearest possible intention to kill. It was squarely within s 18(1)(a). There was no s 18(1)(b) offence alleged. 252 Lest that be thought to be over simplistic, or too literal, an approach, the interpretation is supported by reference to a long line of authority. In Pemble v The Queen [1971] HCA 20; 124 CLR 107, Menzies J said: "The difference [between a reckless killing constituting murder and a negligent killing constituting manslaughter], as I apprehend it, is that to do an unjustifiable act causing death, knowing that it is likely to cause death or grievous bodily harm, is murder, whereas to do a careless act causing death, without any conscious acceptance of the risk which its doing involves, is manslaughter, if the negligence is of so high a degree as to show a disregard for life deserving punishment … The difference between murder and manslaughter is not to be found in the degree of carelessness exhibited; the critical difference relates to the state of mind with which the fatal act is done ." (italics added) 253 In The Queen v Crabbe [1985] HCA 22; 156 CLR 464, in a joint judgment the High Court adopted a passage from Stephen's Digest of Criminal Law, 1st ed (1877), as follows: "... Murder is unlawful homicide with malice aforethought. Malice aforethought means ... (a) An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not; (b) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused ..." 254 Their Honours then said: "The conclusion that a person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by a preponderance of authority but is sound in principle. The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur …

It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result , is guilty of murder if death in fact results." (p 469, italics added) 255 In R v Downs, Lee J (with the concurrence of Cantor J) said: "The various acts resulting in death described in s 18(1)(a) [of the Crimes Act ] were themselves all acts which at common law would give rise to murder, all being acts which would be regarded as acts done with malice aforethought. A killing done with intention to kill or inflict grievous bodily harm was always murder, likewise a killing done with reckless indifference to human life, or by an act obviously dangerous to human life…" 256 In the same case, Smart J referred to s 18 of the Crimes Act and said: "The Crimes Act , s 18(1)(a), in defining murder and s 18(1)(b), in stating that every other punishable homicide shall be taken to be manslaughter, had these results: (a) they described which punishable homicides were to be taken as murder and provided that every other punishable homicide was to be taken as manslaughter; (b) reference had to be made to the common law to ascertain what homicides were punishable; (c) it was recognised that murder and manslaughter formed part of the single felony of homicide." 257 Most recently, in Lavender, Gleeson CJ, McHugh, Gummow and Hayne JJ said: "[2] As this Court held in Wilson v The Queen [[1992] HCA 31; 174 CLR 313], there are two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury; and manslaughter by criminal negligence. Involuntary manslaughter is so called because, unlike murder, it involves neither intent to cause death or grievous bodily harm to the victim, nor the other mental elements necessary for murder …

[10] If the prosecution had alleged that the respondent had intended to drive the front-end loader into or over the victim, and if the jury had found that to be proved beyond reasonable doubt, then the case would have been one of murder. Such use of the front-end loader would obviously have been likely to cause either death or grievous bodily harm …

[27] … Furthermore, logically, the malice involved in involuntary manslaughter must be different from the states of mind described in s 18(1)(a), for otherwise the crime would be murder . In the present case, if the respondent's case had fallen within s 18(1)(a) because he acted with reckless indifference to human life, he would have been guilty of murder, not manslaughter." (italics added) 258 Both counsel relied upon the decision of the Full Court of the Supreme Court of Victoria in Nydam v R [1977] VR 430. In that case, the issue was directions given to a jury where the Crown relied, alternatively, on murder by reckless indifference, and manslaughter by criminal negligence. The Court quoted the passage from Pemble cited above. 259 In considering the mens rea applicable to manslaughter, the Court said: "The mens rea is, rather, an intent to do the act which, in fact, caused the death of the victim, but to do that act in circumstances where the doing of it involves a great falling short of the standard of care required of a reasonable man in the circumstances and a high degree of risk or likelihood of the occurrence of death or serious bodily harm if that standard of care was not observed, that is to say, such a falling short and such a risk as to warrant punishment under the criminal law. This formulation proceeds on the footing that the accused man did not in fact advert (although a reasonable man would have adverted) to the probability that death or grievous bodily harm wound ensue. It adopts the view of Menzies, J, in Pemble v R , supra, and of Lord Hailsham in Hyam v Director of Public Prosecutions [[1975] AC 55 at p 79] that if the accused knows that the act is likely to cause death or grievous bodily harm, and consciously accepts that risk, it is murder." 260 The Crown relied upon a later passage in Nydam, as follows: "In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment." (italics added) 261 The Crown submissions highlighted the words "the act which caused the death was done by the accused consciously and voluntarily". However, that is, with respect, to overlook the words which immediately follow "without any intention of causing death or grievous bodily harm". 262 Here, there is no question, as I have taken some pains to show, that the Crown case was that the appellant intended, by her act, to cause death; and that that was supported by the appellant's own evidence. 263 In my opinion, the inevitable result of this survey of the authorities is that the proposal by the Crown, at the late stage in the trial that it occurred, to leave manslaughter to the jury as an alternative verdict was misconceived. The facts of the case simply did not fit within parameters of manslaughter by criminal negligence (nor of manslaughter by unlawful and dangerous act). 264 There is no ground of appeal that raises this issue. The two grounds of appeal that are most relevant do no more than challenge the directions given to the jury on the count of manslaughter. 265 In oral submissions on the hearing of the appeal, however, senior counsel for the appellant put the proposition squarely. He said: "… the Crown prosecutor spoke of the unlawful act of the provision of a poisonous drink to another person intending to kill them without their consent. That's murder … The case that was ultimately left was said to be a case of involuntary manslaughter, but for involuntary manslaughter it's an act done without any intention to cause death. The whole thing ultimately proves I submit to be misconceived … I submit you can't have a manslaughter whether it's an unlawful and dangerous act or by gross criminal negligence where it's the deliberate provision of the drug, because either it's murder or it's aiding a suicide." 266 He repeated these submissions in writing, in response to the request issued by the Crown. Nevertheless, there is no ground of appeal which, if upheld, would permit this Court to enter a verdict of acquittal. 267 Notwithstanding that, it seems to me that that is the course this Court ought to take. The point is fundamental. Manslaughter ought never have been left to the jury. Accordingly, the conviction on that count cannot stand. 268 That conclusion renders it unnecessary to deal with the remaining grounds of appeal. However, I should record (in case the issue arises again) that I agree with the Chief Justice that the written directions with respect to "capacity" were erroneous. 269 I would add that I question the introduction of the notion of "informed decision". That is a notion imported from civil law concepts concerning consent to medical treatment, testamentary disposition, and the like. It is inappropriate to attempt here to define what constitutes capacity to decide to commit suicide. It is sufficient to say that I doubt that "informed" decision properly states the test. I favour the approach outlined by Johnson J at [363] and following. The test is more appropriately framed as "a rational decision" (although, as "rational" is capable of ambiguity - meaning either "reasoned" or "sensible" - it is probably better to opt for "reasoned", or "knowing", or "comprehended" as the adjective). 270 The orders I would make are:

(i) the appeal against conviction for manslaughter is upheld;

(iii) a verdict of acquittal of manslaughter is entered.

Addendum 271 Since preparing the foregoing reasons, I have read the further comments of the Chief Justice and Johnson J. Each proposes that a new trial be ordered on the count of manslaughter. 272 I have given careful consideration to their Honours' reasons, but I am unable to agree that such an order is appropriate. If my analysis is correct, any further prosecution on the count of manslaughter would amount to an abuse of process. 273 In relation to the views of the Chief Justice that the verdict of not guilty on the murder count was, or may have been compromised by erroneous directions, I make this observation. As I have noted above, the verdicts can be deconstructed. That is because both murder and manslaughter depended upon the Crown proving Mr Wylie's lack of capacity. The verdict of guilty on the manslaughter count established that the jury found that he did lack capacity. The only other question in issue (on the murder count) was the appellant's knowledge (or otherwise) of that lack of capacity. The jury resolved that issue in favour of the appellant. It would not, in my opinion, be right for this Court to permit the Crown a further opportunity to litigate an issue that has clearly been the subject of determination in accordance with proper process. The appellant has the benefit of that determination, and is entitled to its recognition. 274 As to the count of aiding and abetting a suicide, there has been no verdict. In relation to that count, therefore, there is no order or verdict subject to the jurisdiction of this Court. It is a matter for the Director of Public Prosecution whether he will further prosecute that charge. 275 JOHNSON J: I have had the considerable advantage of reading the judgments of the Chief Justice and Simpson J. 276 I have reached the view that the appeal should be allowed and orders made as proposed by the Chief Justice, generally for the reasons given by his Honour. I will return to the grounds of appeal later in this judgment. 277 Given the history of this appeal, and the development (and expansion) of the grounds and submissions advanced for the Appellant, it is appropriate to refer to certain aspects of the trial. This will assist to place in context the issues now distilled for consideration on appeal.

The Trial 278 The trial of the Appellant had a number of twists and turns. The Appellant had denied to police that she had anything to do with Mr Wylie's death. At the commencement of the trial, she pleaded not guilty to both counts on the indictment - murder and aiding and abetting a suicide. The Appellant's senior counsel at trial opened to the jury (on instructions) that she had nothing to do with Mr Wylie's death. 279 It was not until the second week of the trial that the Appellant changed her plea to one of guilty to aid and abet suicide, thereby admitting that she was involved in Mr Wylie's death. 280 The evidence of Associate Professor Carmel Peisah concerning Mr Wylie's capacity was given at a time when manslaughter had not been raised as a possible alternative verdict. 281 The question of whether manslaughter ought be left to the jury was raised for the first time during the defence case. There was no question of voluntary manslaughter being left to the jury - this was not a case where the defence had raised provocation, excessive self-defence or substantial impairment. Rather, the Crown raised the question of involuntary manslaughter, initially by reference to manslaughter by unlawful and dangerous act. After some discussion, the course that was adopted was to leave, as an uncharged alternative verdict for the Appellant, manslaughter by criminal negligence. 282 No complaint was made at trial by defence counsel concerning the late introduction of manslaughter to the trial, perhaps for understandable tactical reasons. Nor was any application made to discharge the jury. 283 The written and oral directions to the jury came to be formulated against this background. Of course, the acquittal of the Appellant on the murder count and the conviction for manslaughter have led to the focus of attention in this Court being the offence of manslaughter by criminal negligence. Some difficult, and apparently novel, issues are raised on the appeal, most of which were not the subject of submissions or a ruling at trial. Indeed, the submissions made on appeal go far beyond those made at trial. The trial Judge did not have the assistance provided by counsel on appeal, let alone the time for reflection available to this Court. 284 I bear in mind that a trial for manslaughter by criminal negligence involves the application of an objective test, based on the standard of a reasonable hypothetical person: The Queen v Lavender [2005] HCA 37; 222 CLR 67 at 87-88. What is required is a comparison between the conduct of the Appellant and the conduct of a reasonable person who possesses the same attributes of the Appellant in the circumstances in which she found herself, having regard to the ordinary firmness of character and strength of mind which a reasonable person has: The Queen v Lavender at 72-74. The Appellant's own knowledge of the circumstances is relevant when considering the circumstances in which the reasonable person is placed: The Queen v Lavender at 88; R v Sam (No. 17) [2009] NSWSC 803 at [9]-[14].

Evidence Concerning Events After December 2005 285 The judgments of the Chief Justice and Simpson J provide some factual background. To what is said in those judgments, I wish to add the following matters which relate to the period from December 2005 (the refusal of the Dignitas application) to March 2006. This period is of particular importance with respect to Mr Wylie's capacity, and also the knowledge of the Appellant (and thus the reasonable person) of matters bearing upon his capacity and the Appellant's actions with respect to Mr Wylie. A recital of this evidence assists an understanding of the circumstances surrounding the Appellant's direct involvement in the death of Mr Wylie. 286 The Dignitas letter dated 9 December 2005, which rejected Mr Wylie's application for an assisted suicide in Switzerland, was a significant piece of evidence in the trial. The letter to Mr Wylie reflected a practical assessment of factors bearing upon the issue of his capacity to decide to end his life. The letter stated (AB389-390) (emphasis added): "We refer to your request dated October 24th for the preparation of an accompanied suicide with the help of DIGNITAS as well as diverse correspondence with your partner Shirley Justins, Dr. Nitschke - director of Exit International and Dr. Schweizer - the physician cooperating with DIGNITAS who looked into the file of your request.

It is absolutely clear that your Alzheimer's disease is a terrible illness, leaving you in a very deplorable state of health. Personally, we do respect and understand your decision to look for a possibility to end your life in dignity. One of the bases for legal assistance is the patient's capacity for judgment - the ability to express the wish for an assisted suicide as well as the ability to actually undertake this final act. To pinpoint 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 is, obviously, an even more delicate task .

The information available to us is ambiguous : Whilst on one hand it appears that you have sufficient insight to realize your diminishing mental capacity and somehow express your wish to end your life - on the other hand you suffer from ongoing dizziness, declining cognitive disorders, memory loss, inability to write a persona] request, etc. Very much in coherence with the general development of dementia, it cannot be established with certainty to which extend your current abilities would comply with the legal and general requirements to fully carry the responsibility of an accompanied suicide .

After a lot of discussing internally, a visit and additional report by Dr. Nitschke, and study of your file, Dr. Schweizer told us, that he does not feel able to give his agreement and write the necessary prescription in your case . We have discussed with him the option of asking you to travel to us solemnly for a meeting and thorough assessment. Yet, we feel that the information available gives enough evidence and additionally, of course, it would not be responsible to ask you for such a strenuous journey. To write a prescription for a medicine that is absolutely lethal and to carry the responsibility for an accompanied suicide certainly takes a strong persuasion . Even though it is our philosophy to try - if there is no other option - and open up an 'emergency exit' for everyone member of DIGNITAS asking us to do so, we also have to respect laws, regulations and a physician's decision, as well as assuming a huge responsibility ourselves.

We read that you have attempted suicide by cutting your wrists. We strongly recommend that you do not undertake further such measures, even though we understand the pain you are in. Please be aware that your chances of a successful suicide are 49:1, indicating that the majority of attempts go terribly wrong - leaving severe health problems and even worsening the sufferings.

Based on the above said and all the information available by now, unfortunately, we shall quite certainly not be able to help you with an assisted suicide through our organization . We sincerely hope that you may rely and continue with the loving care of your close ones, who, as we realize, support you by all means and with all their heart." 287 Under cross-examination, the Appellant agreed that after the rejection from Dignitas, she was on notice that there was a very real issue about Mr Wylie's capacity to commit suicide (T1322-1323): "Q. When you received the rejection from Dignitas, do you agree that you were put on notice that there was a very real issue about Graeme's capacity to commit suicide? A. Yes.

Q. Here was an organisation, whose only function is to assist people to commit suicide; right? A. Yes.

Q. Here was an organisation that had certain requirements, one of which was that the patient had to have a certain level of cognitive understanding before they would assist; right? A. Right.

Q. That organisation had turned Graeme down; right? A. Yes.

Q. They'd turned him down specifically because they were not satisfied that he had the requisite capacity to commit suicide; correct? A. Say that again please?

Q. They turned him down specifically because they were not satisfied that he had the requisite capacity to commit suicide? A. They weren't sure, no.

Q. So you were really on notice this was a real issue back in November 2005, about Graeme's capacity to make a decision to commit suicide? A. December-

Q. Do you agree with that? A. Yes." 288 Mr Wylie had a will that was signed and witnessed on 28 February 1995, the terms of which were that his estate was to be divided in three shares, with 50% to go to the Appellant and 25% to each of his daughters. In September or October 2000, Mr Wylie engaged Ms Pam Favretto as a solicitor. 289 In late December 2005 or early January 2006, the Appellant emailed Ms Favretto, and made an appointment for 3 February 2006. The appointment was subsequently cancelled when Mr Wylie was hospitalised following a fall in the workroom beneath his home on 2 February 2006 (T646-647). 290 According to the Appellant, Mr Wylie made a suicide attempt on 2 February 2006 utilising a lawnmower in the workroom beneath his home. The Appellant said that she bought the lawnmower as Mr Wylie had said he "would be able to carbon monoxide myself" (T1118). The Appellant left the house for a period and returned later to find Mr Wylie calling out. According to the Appellant, Mr Wylie explained that he had made a suicide attempt and did not want her to call an ambulance. In cross-examination, the Appellant said that Mr Wylie had become overcome by fumes which had made him nauseous, and he had gone across the room to open the door. She agreed that he had attempted to commit suicide, had become nauseous and had decided to pull out (T1281-1282). An ambulance was called and Mr Wylie was taken to hospital. Dr Peter Veitch gave evidence that Mr Wylie had presented at the Royal North Shore Hospital with a fractured left hip and an injured right shoulder (T618-619). Dr Veitch did not conduct a full cognitive assessment of Mr Wylie as he was aware that he was under the care of Dr John Cullen for that purpose. Dr Veitch was not told anything about the incident having been a suicide attempt (T621). 291 On 14 February 2006, the Appellant and Ms Jenning met briefly with Dr Phillip Nitschke and Dr Nitschke raised the possibility of re-engaging with Dignitas (T562-563). 292 After the meeting with Dr Nitschke on 14 February 2006, Ms Jenning volunteered to fly to Mexico to purchase Nembutal which would be given to the Appellant to give to Mr Wylie (the so-called "Mexican option"). The Appellant paid for Ms Jenning's ticket to Mexico (T1126-1127). 293 When Mr Wylie's daughter, Tania Shakespeare, visited her father in hospital on 15 February 2006, he raised his leg to show her that he was better and stood on one leg for about 20 minutes. He never said anything to her that indicated that he was contemplating suicide or about Ms Jenning going to Mexico (T267-268). 294 On 16 February 2006, Miriam Harman, occupational therapist at Royal North Shore Hospital, saw Mr Wylie and assessed him as being in need of assistance with showering and equipment. She recalled that he was quite demented, had short-term memory issues and was not very talkative. He had difficulty following directions and would have to be reminded to use his walking frame (T641-642). 295 On 17 February 2006, Peta McLean, social worker at Royal North Shore Hospital, found Mr Wylie to be aggressive. He could not answer questions about his house or family. He was confused and wanted to go home. The Appellant advised Ms McLean that she did not want any assistance once Mr Wylie was discharged (T638-640). 296 On 20 February 2006, Mr Wylie was discharged from hospital. 297 On 23 February 2006, the Appellant took Mr Wylie to see Dr Omparkesh Gupta, a general practitioner at the Chatswood Medical Centre, which was a bulk-billing practice. Dr Gupta was the Appellant's doctor. Dr Gupta was not Mr Wylie's regular general practitioner, and had first seen him in November 2003 for cleaning wax from his ears. The Appellant had taken Mr Wylie to Dr Gupta in September 2005 so that Dr Gupta could remove sutures from his wrists, which had been injured in a suicide attempt on 20 September 2005. 298 The Appellant took Mr Wylie to see Dr Gupta on 23 February 2006 to obtain a prescription for Maxalon, an anti-nausea drug. By this time, the Appellant was aware that Maxalon would assist in a suicide by injection of Nembutal, because of the anti-nausea effects of Maxalon. The Appellant did not tell Dr Gupta about any plan to give Mr Wylie Maxalon to assist in a suicide by the taking of Nembutal. In cross-examination, the Appellant agreed that she went to get the Maxalon from Dr Gupta as "the Mexican option was well and truly in train" (T448-449, 1284-1286). 299 Towards the end of February 2006, Tania Shakespeare called the Appellant about getting assistance to care for Mr Wylie. The Appellant said that she did not want anyone in to help her shower him and nor did she want the Aged Care Team to come out and assess him (T268). Tim Dumbrell, the husband of Nicola Dumbrell (Mr Wylie's other daughter), spoke to the Appellant about getting a doctor to look at Mr Wylie's depression. When Mr Dumbrell suggested that Mr Wylie go into a home near where Tania Shakespeare lives, the Appellant said "I don't think so" (T317-318). 300 The Appellant said that, by this time, Mr Wylie mainly sat on the couch, listened to music or the radio and appeared to have stopped reading and was not doing the banking. His conversations were mainly about what he wanted to eat. In cross-examination, the Appellant said that by February 2006, Mr Wylie had stopped using his tools to make things (T1277). For the last six months, he had not used the telephone (T1307) and, in the last month, on some days the conversation was almost nil (T1319). The Appellant said that, in the last month, Mr Wylie was not capable of discussing current affairs, doing any chores in the house, managing his medication or his financial affairs (T1349, 1361-1362). 301 In cross-examination, the Appellant said that looking back at that period of time, Mr Wylie did not have the capacity to conduct a weighing exercise of the really important decision of the pros and cons of whether or not to suicide, but at that time she did not know that he did not have capacity to make that decision (T1362-1364). 302 On 3 March 2006, the Appellant and Mr Wylie attended on the solicitor, Ms Favretto. The Appellant produced Mr Wylie's 1995 will and instructed Ms Favretto to change the will to leave each daughter $100,000.00 with the balance to the Appellant. Mr Wylie said that he did not want to leave anything to his children. When the Appellant asked if $100,000.00 or another amount might be appropriate, Mr Wylie confirmed the amount of $100,000.00 with Ms Favretto (T649-556). The Appellant agreed in cross-examination that it was her suggestion to give the daughters $100,000.00, or another amount, to avoid them contesting the will. She denied that she was manipulating Mr Wylie, but agreed that this "was done at a time when the Mexican option was well in train" (T1257-1259). In cross-examination, the Appellant also agreed that at the time of Mr Wylie's death, she knew that she would inherit the vast bulk of his estate (T1201-1203). 303 On 10 March 2006, Nicola Dumbrell visited her father at home. The Appellant told her to make it brief as her father was not feeling too good. When she walked in, Ms Dumbrell found him half asleep on the lounge looking frail. She sat with him for a while. He did not say anything to her to indicate that he knew her (T172-173). Tim Dumbrell also visited Mr Wylie at home after Mr Wylie's discharge from hospital, and found that he was frail and had a walker in the house (T317). 304 On 10 March 2006, Ms Favretto emailed the draft will to the Appellant and Mr Wylie for consideration. On 11 March 2006, the Appellant emailed Ms Favretto that the draft will "seems OK so let's go ahead with it". 305 On 12 March 2006, Ms Favretto emailed the Appellant and Mr Wylie asking for a letter from a doctor to the effect that he or she thought that Mr Wylie had testamentary capacity (T660). The will was signed by Mr Wylie on 15 March 2006 after the Appellant had obtained a medical certificate for Mr Wylie from Dr Gupta to the effect that he was "suffering from early patchy dementia. He is still capable of making his own decisions and understanding the nature of the decisions" (T453). Dr Gupta said that the Appellant did not tell him her reason for wanting the certificate (T454). Dr Gupta agreed that, based upon his brief consultations with Mr Wylie, he was probably not in a position to be able to make an assessment about whether or not the deceased was capable of making his own decisions (T468-469). Ms Favretto gave evidence that the Appellant did not tell her that Mr Wylie suffered advanced Alzheimer's disease, either before the preparation of the power of attorney document in April 2003 or the 2006 will (T646-648, 656-657). 306 In cross-examination, the Appellant admitted that, in retrospect, Mr Wylie did not have testamentary capacity at the time of making his will in March 2006 (T1226-1227). The Appellant agreed that by not telling Ms Favretto that Mr Wylie had been diagnosed with Alzheimer's disease, she had deliberately misled Ms Favretto about Mr Wylie (T1230). The Appellant admitted in cross-examination that she knew that she needed a certificate for Ms Favretto, but did not mention Alzheimer's disease or make any mention of Mr Wylie having a marked cognitive impairment (T1234). The Appellant said that whilst Mr Wylie had been in hospital, and up until the meeting on 3 March 2006, there had been no talk about a new will. She had no idea that he wanted to make a new will until they met with Ms Favretto. She admitted that she was concerned that the house would have to be sold and thought that it was unfair. She denied that was safeguarding her position, maintaining it was Mr Wylie's decision and not hers (T1232, 1248-1250, 1256-1257). 307 In her evidence, the Appellant said that in January 2006 she told Mr Wylie that she did not know where she was going to live if he should pass away (T1139). Some time in early December 2005, before the Dignitas rejection, following a bushwalk with the Appellant, Nicola Dumbrell asked her what she would do after Mr Wylie's death in Switzerland. The Appellant told Ms Dumbrell that she was still young and healthy and had another life to lead, and that she would move to Western Australia and live near her mother and brother and travel the world (T163-164). 308 When Mr Wylie and the Appellant attended upon Ms Favretto on 15 March 2006 to execute the new will, Ms Favretto gave the will to Mr Wylie and he appeared to read through it. Prior to their arrival, Ms Favretto had made arrangements for her neighbour, Frederick Amor, to witness the will. In cross-examination, the Appellant admitted that she knew that Mr Wylie had not been reading for some months and was unable to read the will, but had said that she had gone through the draft will at home with him, and asked him if he wanted to change the amount to be left to his daughters, with Mr Wylie responding in the negative (T1259, 1261). The Appellant told Ms Favretto that they had visited the doctor the day before, but Ms Favretto did not receive Dr Gupta's medical certificate from the Appellant until 16 or 17 March 2006 (T673-674). 309 The Appellant said that, from the time of his discharge from hospital on 20 February 2006 up until his death on 22 March 2006, Mr Wylie only left the house four times, twice to visit Dr Gupta and twice to visit Ms Favretto (T1133). 310 On 18 March 2006, Ms Jenning returned to Australia from Mexico, importing the drug Nembutal. The Appellant gave evidence that she collected Ms Jenning and dropped her home and that Ms Jenning had given her the Nembutal. 311 On 19 March 2006, Ms Jenning had dinner at Mr Wylie's home. It is said that she reminded him to take Maxalon for a few days before taking the Nembutal. Ms Jenning also gave the Appellant an article dated 17 March 2006 from "The New York Times" entitled "Study of Alzheimer's Drug Revises Question on Risk" concerning the medication Aricept causing deaths in some patients with heart disease (T771-772, 1145-1146). Mr Wylie was taking Aricept for Alzheimer's disease. It was the Appellant's evidence that Mr Wylie said that he "wanted to go" on Wednesday (T1145). 312 The Appellant said that arrangements were made for the disposal of the Nembutal bottle and glass, with Ms Jenning saying that once the Appellant arrived home and found Mr Wylie, she could call a doctor to come and issue the death certificate, but that the Appellant should take away the bottle and glass from the scene before she left the house (T1146-1147). 313 According to the Appellant, on 20 March 2006, she told Mr Wylie that he would need to take the Maxalon twice a day so that he did not vomit the Nembutal on Wednesday. Mr Wylie took Maxalon on 20 and 21 March 2006 (T1145-1149). 314 According to the Appellant, on the morning of Wednesday, 22 March 2006, she made the Nembutal and the glass available to Mr Wylie. She said that Mr Wylie poured the Nembutal into the glass and became unconscious within several minutes. At about 8.20 am, she took the bottle of Nembutal and the glass, wrapped them in a tea towel and placed them in her bag. The glass broke in her bag. She drove to Ms Jenning's home at Woollahra and gave her the empty Nembutal bottle. The Appellant then went shopping with a friend, returning at about 12 noon. The Appellant's aim was to have an alibi at the time of Mr Wylie's death and when she returned home, Mr Wylie was dead (T781, 1151-1152). 315 The Appellant then made various unsuccessful efforts to obtain a death certificate for Mr Wylie. The Appellant was informed that a report should be made to the police (T764-765). The Appellant asked Dr Susan Lawrence from the Cammeray Family Practice if the drug Aricept (prescribed to Mr Wylie for his Alzheimer's disease) was the cause of his death, to which she was told that it was unlikely (T747). The Appellant and Ms Jenning stated that they did not understand why the police had to investigate and why the doctor could not state the cause of death. They suggested to the police who attended the scene that people who take Aricept had been reported as dying in mysterious circumstances, and showed the police the article from "The New York Times" (T771, 783-784). In her evidence, the Appellant admitted that she had lied to the police about Mr Wylie's death to protect herself and Ms Jenning (T1154). 316 On 24 May 2006, Tania Shakespeare and Nicola Dumbrell lodged a caveat over Mr Wylie's estate, alleging that he lacked testamentary capacity when making his last will dated 15 March 2006. On 5 June 2006, the Appellant commenced proceedings in the Supreme Court of New South Wales seeking probate of that will. 317 On 6 September 2006, a telephone conversation took place between the Appellant and Ms Jenning regarding current affairs items (being events that she would have discussed with Mr Wylie in the time leading up to his death) and requests for reports and notes from Mr Wylie's medical practitioners. During cross-examination, the Appellant conceded that this telephone conversation involved her trying to get material together for the solicitor in the Probate proceedings. She admitted that she and Ms Jenning were preparing to fabricate evidence to "beef up" Mr Wylie's mental capacity at the time of his death. The Appellant knew that what Ms Jenning would say about conversations, which she claimed to have had with Mr Wylie about current affairs at the time leading up to his death, was false (T1340-1342, 1347). The Appellant admitted that she had been aware that Ms Jenning was going to obtain news items for the purpose of fabricating evidence for the Supreme Court proceedings in relation to the 2006 will and Mr Wylie's capacity, asserting that she had discussed those news items with him. The Appellant agreed that it appeared that she was prepared to go along with Ms Jenning lying on oath, so that she could get what she was entitled to under the 2006 will (T1349-1350). 318 On 8 September 2006, the Appellant was interviewed by the police and denied any involvement in the death of Mr Wylie. In cross-examination, the Appellant admitted that she had lied to doctors and police, that she had lied in her record of interview and lied to Ms Favretto and to her counsel in the trial, but denied that she had intentionally lied to the Court (T1227, 1230, 1285-1288). 319 At the commencement of the trial on 5 May 2008, the Appellant pleaded not guilty to aiding and abetting Mr Wylie's suicide. At the conclusion of the Crown opening address, her then senior counsel made an opening address to the jury on 9 May 2008, in which he said (on instructions) that the Appellant "did not do anything to help his death, to accelerate his death, to help him suicide. She did not help anybody else do those things, or any one of them" (T119-120). A little later, senior counsel submitted that the Appellant "played no part in that death" and that "Graeme Wylie died either because he was the author of his own death or, if he had any help, it wasn't from anybody in this court room" (T120.13). Under cross-examination, the Appellant acknowledged that she had provided her counsel with a false account which had been referred to in his opening address to the jury. 320 Well into the trial, the Appellant pleaded guilty in the presence of the jury to the charge of aiding and abetting a suicide, but that plea was not accepted by the Crown in discharge of the indictment. 321 I have provided this fuller summary of the evidence at trial to place in context the issues falling for determination on this appeal. It will be apparent that a substantial challenge to the credibility and reliability of the Appellant was made by the Crown at trial. Howie J referred to many of these events in his remarks on sentence: R v Justins [2008] NSWSC 1194. 322 In his remarks on sentence, Howie J made the following finding, at [41], concerning the jury's verdict of manslaughter: "The jury could have come to its verdict of manslaughter in one of two ways: either (a) because a reasonable person would have known that the deceased lacked capacity to make the decision to take his own life, or (b) a reasonable person would have made inquiries to ensure that he had that capacity before providing him with a poison. It may not matter in assessing the offender's criminality to determine what the jury found. However, it is instructive that the jury reached the view that Ms Jenning knew that the deceased lacked capacity. That finding might on first blush seem inconsistent with their finding in respect of the offender's mental state. But the difference can be explained in that Ms Jenning was more objective in her assessment of the deceased than the offender in the last weeks of his life. There was evidence before the jury that a carer might less readily appreciate the deterioration in a person's mental state. The jury asked a question about this piece of evidence. I believe that the jury concluded that a reasonable person in the offender's position would have realized that shortly before his death the deceased lacked the capacity to make a decision to end his life as Ms Jenning did."

Evidence of Associate Professor Peisah 323 The directions concerning capacity at the trial appear to have had their origin in the law concerning testamentary capacity. As Mr Wylie had signed a will a week before his death, this issue had some relevance at the time. As is demonstrated by the above summary of evidence, activities surrounding Mr Wylie's new will were a particular focus of the Appellant's attention in the last few weeks of Mr Wylie's life. Evidence was given by Associate Professor Peisah in the Crown case which provided the evidentiary platform for these principles to be invoked. It should be remembered that this evidence was given before the prospect of an alternative verdict of manslaughter had even been raised in the trial. 324 I am conscious that Ground 3 challenges the admissibility of part of the evidence of Professor Peisah. The Chief Justice and Simpson J do not consider and determine Ground 3. For my part, I do not consider that Associate Professor Peisah gave evidence about the "content of a legal standard", being "causation" as complained of in Ground 3. I observe that no objection was taken at trial to the evidence now complained of, so that Rule 4 Criminal Appeal Rules applies. I am not persuaded that this evidence should have been disallowed. Expert opinion evidence concerning Mr Wylie's capacity was admissible. Given the close temporal relationship between the making of the will and Mr Wylie's death, opinion evidence concerning testamentary capacity was relevant to the issues which the jury had to decide. The making of the will was a very significant reference point in the mind of the Appellant (and of a reasonable person with the knowledge of the Appellant). 325 The following evidence serves to explain the way in which a number of the concepts used in directions to the jury concerning capacity came into play in the trial. 326 Associate Professor Peisah is a psychiatrist with very extensive experience in geriatrics, working part time at the Prince of Wales Hospital in the Department of Old Aged Psychiatry (T907). Associate Professor Peisah sits as a professional member of the Guardianship Tribunal and also performs medico-legal and academic work (T907-908). She teaches in the Master's Degree in Geriatric Medicine at the University of New South Wales (T909). Associate Professor Peisah did not examine Mr Wylie at any time whilst he was alive. Rather, she was approached in February 2007 to provide a report in relation to Mr Wylie's cognitive impairment and was provided with a volume of documentary material for that purpose (T911-912). She expressed the opinion that Mr Wylie would not have had the cognitive capacity to plan a suicide in March 2006 (T938). 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.

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."

The reference by Associate Professor Peisah to Banks v Goodfellow (1870) LR 5 QB 549 is a reference to a leading case on testamentary capacity: Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698; Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 at 237 [46] . 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-

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-

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 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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