Justins v Regina [2010] NSWCCA 242

Reported Decision: 204 A Crim R 315

New South Wales Court of Criminal Appeal

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

HEARING DATE(S): 4 June 2010

JUDGMENT DATE: 28 October 2010

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

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

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

LEGISLATION CITED: Crimes Act 1900 Criminal Appeal Act 1912

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