Carter v Attorney-General [2013] QCA 140 [2014] 1 Qd R 111; (2013) 234 A Crim R 211

SUPREME COURT OF QUEENSLAND CITATION: Carter v Attorney-General for the State of Queensland [2013] QCA 140 PARTIES: STEPHEN WAYNE CARTER (appellant) v ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND (respondent) FILE NO/S: Appeal No 8863 of 2012 SC No 2587 of 2012 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 31 May 2013 DELIVERED AT: Brisbane HEARING DATE: 4 March 2013 JUDGES: White JA, Atkinson and Martin JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Appeal dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – GENERALLY – where appellant convicted of murder for killing another at that other‟s request – where appellant unsuccessfully petitioned Governor of Queensland for pardon pursuant to s 36 of the Constitution of Queensland 2001 – where appellant unsuccessfully applied for statutory order of review of Attorney-General‟s decision not to refer appellant‟s whole case to court pursuant to s 672A of the Criminal Code – whether Attorney erred in not referring matter to court – whether s 311 of Criminal Code is complete code for purposes of ascertaining criminal responsibility where a person has caused the death of another who is desirous of death – whether miscarriage of justice because trial judge failed to direct jury that if deceased was substantial or significant cause of her own death then appellant not guilty of murder Constitution of Queensland 2001, s 36 -- 1 of 15 -- 2 Criminal Code 1899 (Qld), s 1, s 2, s 18, s 25, s 284, s 291, s 293, s 295, s 297, s 298, s 300, s 302(1), s 302(1)(a), s 304, s 304A, s 304B, s 311, Ch 67, s 668, s 668E, s 668E(1), s 672A, s 672A(a), s 672A(b), Ch 26, Ch 28 Judicial Review Act 1991 (Qld), 20(2)(e), s 20(2)(f), s 20(2)(i), s 26 Campbell v The Queen [1981] WAR 286; (1980) 2 A Crim R 157, cited March v Stramere (E & MH) Pty Ltd (1991) 171 CLR 506; (1991) HCA 12, cited National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569; [1961] HCA 15, cited Nicklinson v Ministry of Justice and Ors [2012] EWHC 304 (QB), cited Pepper v A-G (Qld) [No2] [2008] 2 Qd R 353; [2008] QCA 207, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited R v Carter [2003] 2 Qd R 402; [2002] QCA 431, cited R v Carter (2003) 141 A Crim R 142; [2003] QCA 515, considered R v Grimes and Lee (1894) 15 NSWR(L) 209, cited R v Lowrie & Ross [2000] 2 Qd R 529; [1999] QCA 305, cited R v Main (1999) 105 A Crim R 412; [1999] QCA 148, cited R v Sherrington [2001] QCA 105, cited Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27, considered Timbu Kolian v The Queen (1968) 119 CLR 47; [1968] HCA 66, cited Weld-Blundell v Stevens [1920] AC 956, cited COUNSEL: A Vasta QC, with K Payne, for the appellant P J Davis SC, with B A Hall, for the respondent SOLICITORS: Fraser Power Lawyer and Notary Public for the appellant Crown Solicitor (Brisbane) for the respondent [1] WHITE JA: The appellant has appealed the dismissal of his application to review the decision of the Attorney-General not to refer his case to the Court of Appeal pursuant to s 672A of the Criminal Code (Qld) following his unsuccessful petition to Her Excellency the Governor of Queensland to exercise the prerogative powers of the Crown to pardon him in respect of his murder conviction or, alternatively, to exercise the prerogative of mercy in his favour. Background [2] On 16 March 2000 the appellant injected Gail Marke with heroin intending that this would kill her in accordance with her expressed wish to die in this way. He then inserted a syringe containing heroin into the arm of Patrick Smyth at his request and watched as Smyth pushed in the plunger. Smyth died immediately. Marke was still -- 2 of 15 -- 3 breathing but unconscious when the appellant left the room that night. She was dead when found the following morning. The appellant had supplied the heroin. The deceased were heroin addicted persons. The appellant was a heroin user. Both deceased had expressed a desire to die and Marke had attempted suicide several times. [3] On 24 March 2000 police conducted an interview with the appellant in which he explained what had occurred on the night of 16 March 2000. Without his admissions there would have been no way of implicating the appellant in the mechanism of the deaths. He had wiped his fingerprints from the syringe. The following appears in McPherson JA‟s judgment dismissing the appellant‟s appeal from his conviction for murder: “[4] The appellant said that he had injected Gail first. She was not able to do it herself, or bring herself to do it. He put the needle in her arm, and asked if she was absolutely sure, to which she said “yes, just do it”, and he pushed in the plunger of the syringe. She said “what a rush”, and lay down on her back, on the left hand side of the bed. At that stage she was still breathing. In the case of Smyth, the appellant inserted the needle, but Smyth pushed the plunger in himself, and he may also have withdrawn the needle. He just dropped down straight away “like a stone”. [5] When asked in the course of the interview, the appellant said he thought that Gail was going to die. That was, he said, “the intention of the exercise”.”1 The necessary mental element for murder pursuant to s 302(1)(a) of the Criminal Code was thus established. [4] The appellant pleaded guilty to having unlawfully supplied heroin to Smyth and to assisting his suicide contrary to s 311 of the Criminal Code. He was arraigned and pleaded not guilty to a charge of murdering Gail Marke but guilty of aiding her to kill herself. The prosecution did not accept that plea and the trial proceeded on the murder charge. The appellant was convicted of murdering Gail Marke and sentenced to life imprisonment. His appeal against his conviction was dismissed.2 [5] An earlier conviction had been set aside and a retrial ordered because of the incompetence of trial counsel.3 [6] The second appeal was concerned with the question whether the injection of heroin by the appellant had caused Marke‟s death within the meaning of that expression in s 293 of the Criminal Code. The High Court in Royall v The Queen4 explained that while there may be no single cause of the death of a deceased, at common law: “if the accused‟s conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder.”5 1 R v Carter [2003] QCA 515 at [4]-[5]. 2 R v Carter [2003] QCA 515. 3 R v Carter [2002] QCA 431. 4 (1991) 172 CLR 378. 5 At 411 per Deane and Dawson JJ. -- 3 of 15 -- 4 Courts in Queensland, when considering s 293 of the Criminal Code, “have applied to killing and causing death the meaning ascribed to those expressions at common law in Royall v The Queen.”6 [7] The issue of causation arose because, as described by McPherson JA7, one of the principal prosecution witnesses, a clinical pharmacologist, appeared to be making a distinction between a “significant” and a “substantial” cause of the death. The toxicology screening of the deceased revealed other drugs, as well as differently aged derivatives from heroin, suggesting either that she had absorbed significant quantities of morphine in the 24 hours proceeding her death, or that, for her body to have broken down the heroin to the proportions shown in the screening, she had survived for up to half an hour after having been injected with heroin by the appellant.8 The pharmacologist said that for the heroin injection alone to have caused the death it would have been necessary for the deceased to have survived the injection for at least half and hour. He would have been surprised if the deceased had lived that long. He gave evidence about the additive effect of all the drugs in the deceased‟s system. The pharmacologist concluded that the heroin injection “could be a significant contribution but … [not] a substantial contribution given all of the other confounders”.9 [8] At the close of the prosecution case the defence had unsuccessfully submitted that there was no case for the appellant to answer in light of this body of evidence about the cause of death. On appeal the question was whether, in light of the evidence of the pharmacologist, a reasonable jury could have convicted. [9] McPherson JA said,10 of the legal nature of causation, in the circumstances of this case: “The function of scientific evidence at a trial at common law is not to usurp the function of the jury but to assist them in reaching their conclusion with the requisite degree of satisfaction. In relation to the element of causing death in homicide, this has been expressly recognised by the High Court in Royall v The Queen (1991) 172 CLR 378, 387, where Mason CJ approved a statement by Burt CJ that it is enough if juries are told that the question of cause for them to decide is not a philosophical or scientific question, but a question to be determined by them applying their common sense to the facts as they find them, while appreciating that the purpose is to attribute legal responsibility in a criminal matter.” On that question the court concluded that the jury were entitled to be satisfied beyond reasonable doubt that the appellant had killed the deceased. [10] The appellant unsuccessfully sought special leave to appeal to the High Court. [11] On 4 November 2010 the appellant petitioned Her Excellency the Governor of Queensland for a pardon pursuant to s 36 of the Constitution of Queensland 2001 (Qld). In the petition the appellant contended that he could not be guilty of the 6 R v Carter [2003] QCA 515 at [6] per McPherson JA referring to R v Lowrie & Ross [1999] QCA 305 at [11] and R v Sherrington [2001] QCA 105 at [4]. 7 R v Carter [2003] QCA 515 at [9]. 8 R v Carter [2003] QCA 515 at [9] per McPherson JA. 9 R v Carter [2003] QCA 515 at [11]. 10 R v Carter [2003] QCA 515 at [13]. -- 4 of 15 -- 5 crime of murder because his injection of heroin into the deceased was not a “substantial cause” of her death because her procurement of the appellant to do so was such a cause. Accordingly, he should not have been charged with murder and “… his conviction upon this charge discloses a grave error of law and ought not to be allowed to stand.”11 The appellant contended that the only crime of which he was guilty was of assisting suicide pursuant to s 311. [12] The matter was referred by Her Excellency to the Attorney-General for “a detailed and thorough examination of [the] case and submission”.12 On receipt of certain information Her Excellency sought further advice about provisions in the Criminal Code. [13] On 16 December 2011 the appellant was informed that Her Excellency was of the opinion that “there [was] no justification” for the exercise of any powers conferred by the Constitution of Queensland 2001.13 [14] On 20 March 2012 the appellant filed an application for a statutory order of review of the decision of the Attorney-General: “… not to positively exercise the Crown Law Officer‟s discretion, conferred by section 672A(a) of the Criminal Code, to refer the Applicant‟s whole case to the Court for hearing and determination by the Court as in the case of an appeal by a person convicted”.14 He sought an order remitting the decision to the Attorney-General for further consideration and determination in accordance with law. [15] Section 672A provides that nothing in Ch 67 relating to appeals shall affect the pardoning power of the Governor on behalf of Her Majesty: “… but the Crown Law Officer, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person … may – (a) refer the whole case to the Court, and the case shall be heard and determined by the Court as in the case of an appeal by a person convicted; or (b) if the Crown Law Officer desires the assistance of the Court on any point arising in the case with a view to the determination of the petition, refer that point to the Court for its opinion thereon, and the Court shall consider the point so referred and furnish the Crown Law Officer with its opinion thereon accordingly.”15 [16] “Court” in s 672A means “the Court of Appeal”.16 Pursuant to s 1 of the Criminal Code, “Crown Law Officer” is a reference to the Attorney-General or Director of 11 AR 58. 12 Letter from Official Secretary to Her Excellency the Governor to appellant‟s solicitor, dated 15 November 2010, AR 67. 13 AR 68. 14 AR 72. 15 Criminal Code, s 672A. 16 Criminal Code, s 668. -- 5 of 15 -- 6 Public Prosecutions. Nothing in the Criminal Code affects the Royal prerogative of mercy.17 [17] Section 668E provides for the determination and disposition of appeals generally and is the procedure to be applied to any reference under s 672A(a). Relevantly, s 668E(1) provides: “The Court … shall allow the appeal if … on any ground whatsoever there was a miscarriage of justice …”18 [18] The application for judicial review was heard by Margaret Wilson J on 19 July 2012. That application included an application for an extension of time, given that the Judicial Review Act requires an application for review to be brought within 28 days after the day on which the decision was made.19 Her Honour declined to extend time, on the basis that the substantive application contained no merit. [19] As the primary judge observed, the powers conferred by s 672A are enlivened by the presentation of a petition for the exercise of the pardoning power after conviction, and, in a normal case, after an unsuccessful appeal. Her Honour20 referred to the following observation by Muir JA in Pepper v Attorney-General for the State of Queensland: “… A reference under s 672A is a mechanism which the Crown may employ so that the exercise of the pardoning power may be properly informed or so as to grant the petitioner, in effect, a further appeal.”21 [20] As further noted by her Honour, there have been a number of decisions in this court and the Federal Court on applications for judicial review of the Attorney-General‟s exercise of discretion under s 672A of the Criminal Code.22 These applications have been made on the assumption that the Attorney‟s decision, having been made under an enactment, is amenable to judicial review. It was not argued by the respondent to the contrary. It was accepted that the provision of reasons was not required.23 [21] Before the primary judge the amended grounds of review were: “1. The decision by the Attorney General not to refer the whole case to the Court of Appeal („the decision’) was an improper exercise of the power conferred by s. 672A of the Criminal Code. (S.20(2)(e) Judicial Review Act 1991). 2. The decision involved an error of law (S.20(2)(f) Judicial Review Act 1991). 3. The decision was otherwise contrary to law. (S.20(2)(i) Judicial Review Act 1991).”24 17 Criminal Code, s 18. 18 See R v Main [1999] QCA 148 at [15] and Pepper v A-G (Qld) [No2] [2008] QCA 207 at [12]. 19 Section 26(2). 20 Reasons [10]; AR 89. 21 [2008] 2 Qd R 353 at [11]; [2008] QCA 207 at [11]. 22 Reasons [11]; AR 89. 23 Reasons [23]-[25]; AR 92-93. 24 Reasons [13]; AR 89-90. -- 6 of 15 -- 7 The respondent accepted before her Honour that if he had wrongly understood the law, and the law was as submitted by the appellant, then there had been a miscarriage of justice and the case should be referred to the Court of Appeal.25 [22] Before this court the respondent submitted that if the court concluded that the Attorney had erred in not referring the case to the Court of Appeal, since only an error of law is in issue, the point would be decided. In that circumstance it would be otiose to resubmit “the whole case” again under s 672A. Counsel informed the court that, should the court uphold the appeal, the Attorney would formally submit to an order setting aside the conviction and ordering a retrial. In effect, by this appeal, the appellant has achieved the very outcome he sought initially – a consideration of his argument about causation by this court. It is incidental that that is the effect of the appeal. [23] Her Honour observed that s 672A(b) would seem to apply, not s 672A(a). That is, if the appellant is successful, it is not “the whole case” that should be referred to the court, but a particular “point”. However, on the basis of how he articulated it to this court, I am inclined to the view that what the appellant seeks is the referral of “the whole case”. The appellant’s contentions [24] The appellant contends, broadly, that confining the “cause” of the deceased‟s death to physical phenomena which led “to the cessation of breathing” – rather than directing the jury to consider the importunities of the deceased as a substantial cause – was an error that brought about a miscarriage of justice.26 He seeks to find support for that argument in Royall v The Queen.27 [25] In support of that contention the appellant argues that s 311 of the Criminal Code is a complete code for ascertaining criminal responsibility in circumstances like the present. Such a conclusion necessarily precludes any resort to s 302 – the crime of murder. While this argument was not advanced at either trial or on either appeal, if it is correct a miscarriage of justice has occurred and the prior failure to raise it will not preclude its consideration now. [26] To test the argument the relevant provisions must be considered in their context in the Criminal Code. The first is located in Ch 26 – “Assaults and violence to the person generally – justification and excuse”. “284 Consent to death immaterial Consent by a person to the causing of the person‟s own death does not affect the criminal responsibility of any person by whom such death is caused.” [27] The balance of the relevant provisions are in Ch 28 – “Homicide – suicide – concealment of birth”: “291 Killing of a human being unlawful It is unlawful to kill any person unless such killing is authorised or justified or excused by law. 25 Reasons [15]; AR 90. 26 Appellant‟s Outline of Argument, paras 2.6-2.7. 27 (1999) 172 CLR 378. -- 7 of 15 -- 8 … 293 Definition of killing Except as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person. … 300 Unlawful homicide Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case. … 302 Definition of murder (1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say – (a) if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm; (b) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life; (c) if the offender intends to do grievous bodily harm to some person for the purpose of facilitating the commission of a crime which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such crime; (d) if death is caused by administering any stupefying or overpowering thing for either of the purposes mentioned in paragraph (c); (e) if death is caused by wilfully stopping the breath of any person for either of such purposes; is guilty of murder. (2) Under subsection (1)(a) it is immaterial that the offender did not intend to hurt the particular person who is killed. (3) Under subsection (1)(b) is it immaterial that the offender did not intent to hurt any person. -- 8 of 15 -- 9 (4) Under subsection (1)(c) to (e) it is immaterial that the offender did not intend to cause death or did not know that death was likely to result. … 311 Aiding suicide Any person who – (a) procures another to kill himself or herself; or (b) counsels another to kill himself or herself and thereby induces the other person to do so; or (c) aids another in killing himself or herself; is guilty of a crime, and is liable to imprisonment for life.” [28] For completeness, s 2 of the Criminal Code provides: “An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.” [29] The appellant‟s argument about causation proceeds in this way, where s 293 states “any person who causes the death of another …” the concept of “causation” is broader than mere physical acts causing death. The appellant relies upon certain statements by the High Court in Royall v The Queen28 to support this contention. In Royall the accused was charged with the murder of a woman who fell from the bathroom window of her upper floor flat. The couple had had a violent altercation during which the accused (as he subsequently admitted) had punched the deceased. There was evidence of forcible entry into the very small bathroom and of a struggle. The woman‟s blood was in the flat and bathroom. A chipped glass ashtray was found in the bathroom and gouge marks on the wall were consistent with someone having swung an arm while holding such an object. The Crown case was that the accused had murdered the deceased in one of three ways: he had pushed her out of the window; he had attacked her in the bathroom, and she fell while avoiding the attack; or having a well-founded and reasonable apprehension of life-threatening violence, she jumped from the window.29 [30] Although that case was factually quite different from the present, the appellant relies upon the acceptance by all the judges that the cause of the woman‟s death did not need to be a direct physical act but could occur by virtue of “inducement”. The appellant30 particularly refers to the following statement by Deane and Dawson JJ: “Where in a case of that kind31 the charge is murder, the prosecution must not only prove that the accused caused the death by inducing a well-founded fear or apprehension on the part of the deceased such as to make it a natural consequence that he or she should take steps 28 (1991) 172 CLR 378. 29 Royall v The Queen (1991) 172 CLR 378 at 380. 30 Appellant‟s Outline of Argument, para 4.2. 31 Their Honours had just referred to R v Grimes and Lee (1894) 15 NSWR(L) 209 where the accused had robbed and assaulted the deceased causing him to jump to his death from the window of the carriage of a train. The jury had been directed to consider whether the deceased jumped through the window because he had a well-founded and reasonable fear or apprehension that if he stayed he would be subjected to further violence that would endanger his life; if so, they would conclude that the accused caused the death. -- 9 of 15 -- 10 to flee or escape, but it must also prove that the words or conduct which induced that fear or apprehension were accompanied by the intent which is a necessary ingredient of the crime of murder.”32 [31] The appellant contends that Marke‟s actions in planning her own death, deciding on the means by which she would die, and seeking out and persuading the appellant to assist her, must result in a large degree of causal responsibility for her own death being attributed to her. If, according to the appellant, causation is limited to the physical act, then a person who assists a suicide by doing any physical act that causes the death, notwithstanding that there may be other causes of the death, will be guilty of murder. In such a circumstance, the appellant contends, this would defeat the purpose of s 311. The appellant further argues that there is nothing in s 311 to confine the actions of the aider to non-physical actions. That may be accepted. [32] The appellant contends that it was a fundamental error by the primary judge to conclude that, because the jury was directed on the question of causation in respect of the appellant‟s actions, it was unnecessary to direct them as to whether the acts of the deceased substantially or significantly caused her own death. The failure of the jury to consider this question deprived the appellant of the chance of acquittal on the charge of murder. [33] The jury, according to the appellant, ought to have been directed that the acts of both the appellant and the deceased contributed to her death in these terms: “that unless they could not exclude beyond reasonable doubt that Marke was the person who substantially or significantly caused her own death, they could not convict the Appellant.”33 The appellant contends that no reasonable jury could exclude that possibility. In that case, no murder took place as Marke was incapable in law of murdering herself – “any person who unlawfully kills another”.34 The homicide provisions of the Criminal Code thus had no application and the appellant‟s contribution to the death amounted to no more than assisting suicide. [34] The appellant contends that s 311 of the Criminal Code is an exhaustive provision for both criminal responsibility and punishment where a person embarks upon a course of conduct which involves the procurement and urging of another to assist that person in killing him or herself. Where in a case such as the present the facts support a characterisation of the act as one of “unlawful killing”, and the mental element for murder is established, the purpose of s 311 would be defeated if the person recruited to assist in the killing were to be charged with murder. The appellant points to the “artificiality” of the different verdicts and the acts of the appellant in the case of Marke and that of Smyth. “Only by considering the non- physical causative actions of the deceased can the true context of Marke‟s death be properly appreciated and criminal culpability for both deaths be reconciled”.35 [35] According to the appellant‟s argument, the goal of statutory construction mandated in Project Blue Sky Inc v Australian Broadcasting Authority36 of harmonious reconciliation of all provisions can be achieved if s 302 is construed to cover all 32 Royall v The Queen (1991) 172 CLR 378 at 410. 33 Appellant‟s Outline of Argument, para 5.4. 34 Criminal Code, s 302. 35 Appellant‟s Outline of Argument, para 4.4. 36 (1998) 194 CLR 355 at 381. -- 10 of 15 -- 11 unlawful killings other than suicides irrespective of whether the act of assisting is minor or substantial or is the very act which causes the cessation of breathing. The respondent’s contentions [36] The respondent‟s argument is as follows: “24. On a proper construction of [the] provisions [in the Code]:- (a) if an offender causes the death of another then he has killed the person;37 (b) the killing is unlawful unless authorised, justified or excused by law;38 (c) consent of the person killed to the killing is not an authorization, justification or excuse and the consent is irrelevant to the criminal responsibility of the offender;39 (d) where the offender held an intent to kill when he killed the person then the unlawful killing is murder;40 (e) therefore, when an offender, with the consent of the person, intentionally causes the death of the person then in the absence of any lawful excuse, the offender is guilty of murder; (f) where the person causes his own death any person who assists him is not guilty of murder as that person has not killed the person ie. he has not “caused” the death;41 (g) however, where a person causes his own death and another person assists the person to cause his own death then the person who has assisted is guilty of the offence of aiding suicide.42 25. Therefore, the distinction between a killing which constitutes murder and a killing which constitutes assisted suicide is whether the acts or omissions of the offender caused the death.”43 Discussion [37] It is convenient to start with some orthodox statements about causation. In the appellant‟s second appeal to this court, McPherson JA noted that in the definition of murder in s 302(1), and in speaking in s 300 of murder and manslaughter as forms of homicide: “… the Code uses the expression “kills another”. In other provisions, such as ss 295, 297 and 298, it refers to an act or omission “which results in the death” of another person, or from 37 Section 293. 38 Section 291. 39 Section 294. 40 Section 302. 41 Section 293. 42 Section 311. 43 Respondent‟s Outline of Argument, paras [24] – [25]. -- 11 of 15 -- 12 which death results; and in s 293 killing a person is equated with causing the death of another: … In consequence, courts in Queensland acting under the Code have applied to killing and causing death the meaning that was ascribed to those expressions at common law in Royall v The Queen … See, for example, Lowrie & Ross (1999) 106 A Crim R 565, 570-571; and R v Sherrington [2001] QCA 105 §4.”44 His Honour referred to various passages in the judgments in Royall. It is useful to do so here. Mason CJ said: “The issue of causation was left to the jury to decide as one of fact. In this respect I agree with the statement made by Burt C.J. in Campbell v. The Queen45, that it is “enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.”46 [38] Brennan J said: “The basic proposition relating to causation in homicide is that an accused‟s conduct, whether by act or omission, must contribute significantly to the death of the victim … It need not be the sole, direct or immediate cause of the death. However, when the death is not caused directly by the conduct of the accused but by something done by the victim or by a third person in response to the conduct of the accused, there is a question whether the chain of causation has been broken.”47 [39] Deane and Dawson JJ observed: “Of course, there may be no single cause of the death of the deceased, but if the accused‟s conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder. It is for the jury to determine whether the connexion between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility to the accused …”48 [40] The same idea was expressed by Toohey and Gaudron JJ: “Nevertheless the jury must be told that they need to reach a conclusion as to what caused the deceased‟s death. That does not mean that the jury must be able to isolate a single cause of death; there may be more than one such cause … In that event it is inevitable that the jury will concentrate their attention on whether an act of the accused substantially contributed to the death.”49 44 R v Carter [2003] QCA 515 at [6]. 45 [1981] WAR 286 at 290; (1980) 2 A Crim R 157 at 161. 46 Royall v The Queen (1991) 172 CLR 378 at 387. 47 Royall v The Queen (1991) 172 CLR 378 at 398. 48 Royall v The Queen (1991) 172 CLR 378 at 411. 49 Royall v The Queen (1991) 172 CLR 378 at 423. -- 12 of 15 -- 13 And, a little later: “In ordinary circumstances, the jury‟s task may be made easier if they are asked to determine first the cause of death rather than inquire whether an act of the applicant caused the death.”50 [41] To similar effect was the following observation of McHugh J: “To constitute a cause for the purposes of the criminal law, it is not necessary that an act or omission be the sole or main cause of a wrong … But, as I have indicated, the purpose of the legal doctrine of causation is to attribute legal responsibility, not to determine the factors which played a part in the happening of an event or occurrence.”51 [42] A not dissimilar issue about causation to that which arose in Royall was considered in Timbu Kolian v The Queen52 although in the context of “accident”. Windeyer J said: “It was an old question, familiar in law, however questionable in philosophy, of asking was there what has been called a break in the chain of causation by what lawyers have described as a novus actus interveniens. Sir Frederick Pollock warned that “… the lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause”. I said all that I can usefully say on this topic in National Insurance Co. of New Zealand Ltd. v. Espagne53. However, it may be permissible to say again that, in ascribing effects to causes, and in seeking the cause of an event, the purpose of law, civil and criminal, is to attribute legal responsibility to some person – “to fix liability on some responsible person”, Lord Sumner said in Weld-Blundell v. Stevens54.”55 [43] In March v Stramare (E & MH) Pty Ltd56 Mason CJ observed of causation in the context of legal responsibility: “In philosophy and science, the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. The law does not accept John Stuart Mill‟s definition of cause as the sum of the conditions which are jointly sufficient to produce it. Thus, at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage.”57 50 Royall v The Queen (1991) 172 CLR 378 at 424. 51 Royall v The Queen (1991) 172 CLR 378 at 441. 52 (1968) 119 CLR 47. 53 (1961) 105 CLR 569 at 590-596. 54 [1920] AC 956 at 986. 55 (1968) 119 CLR 47 at 68-69. 56 (1991) 171 CLR 506. 57 (1991) 171 CLR 506 at 509. -- 13 of 15 -- 14 The appellant‟s argument, although expressed conventionally, is more in the nature of “the sum of the conditions which are jointly sufficient to produce” the death of Gail Marke. [44] Royall does not provide the answer to the appellant‟s quest for some different characterisation of what he did to the deceased. The relevant question in Royall was whether the victim‟s death could be attributed to the accused‟s unlawful assault or whether the link to his unlawful acts was broken. [45] When pressed in argument, the appellant‟s counsel conceded that the resulting criminal responsibility must be the same whatever the means of bringing about the “cessation of breathing”. For example, if a would-be-suicide is too weak or too afraid to pull the trigger on a gun and successfully implores another to do the act; or successfully seeks death by strangulation. There can be no different answer if the act occurs by injection – and the appellant did not suggest otherwise. The response must be that the person who pulled the trigger of the gun, directing the muzzle to the person‟s heart, caused the death and, intending that the other should die, was guilty of murder. So, too, to a death by strangulation or by lethal injection. The common law has never doubted the characterisation of a positive act which intentionally causes death as murder. [46] In the course of oral submissions counsel for the appellant made reference to Nicklinson v Ministry of Justice and Ors,58 but in subsequent written submissions said it was not relevant. That case concerned the ambit of the defence of necessity. The appellant here has not sought to argue the application of s 25 of the Criminal Code – “Extraordinary emergency” – which is as close as the Code comes to the common law defence of necessity. It could not conceivably apply. [47] No articulation of the concept of causation in the common law supports the argument that where a person does the act, which is a significant or substantial cause of the death of another, and intends to do so, it is not murder, notwithstanding that moral, ethical or other persuasive forces might be operating on him or her. [48] It is now necessary to consider further the provisions in the Criminal Code. The appellant contends that s 284 is relevantly neutral, in a case of this kind, when it provides that consent by a person to the causing of the person‟s own death does not affect the criminal responsibility of any person by whom such death is caused. That is correct. In general terms it can be applied to a s 302 or s 311 charge. Section 293 provides that “any person who causes the death of another … is deemed to have killed that other person”. Those words are qualified by the expression “except as hereinafter set forth”. The appellant contends that that is, relevantly, a reference to s 311 not just the “defence” provisions. I do not accept that argument. The expression is plainly a reference to s 304, s 304A and s 304B, each of which is prefaced by the words: “A person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder …” [49] By s 293, if an accused person causes the death of another they have killed that person. Consent, as mentioned, is irrelevant to the criminal responsibility of such an accused. To hold otherwise would be contrary to the fundamental underpinning of this part of the criminal law: that a human life is valuable. 58 [2012] EWHC 304 (QB). -- 14 of 15 -- 15 [50] Accordingly, to kill someone by a positive act, with the requisite intention, even though that person expressed a desire to die, is murder. The Criminal Code is clear. Where a person desirous of death brings about their own death by their own act, any person who assists in that act of autonomy by the suicide, but does not do the deed, has aided the suicide. The degree of moral responsibility may be reflected in the punishment which may be up to life imprisonment. [51] There are sound reasons in policy not just the application of legal analysis in preferring this result. A person who desires to kill another may readily employ the “assist suicide” argument when murder was intended and against the wish of the victim; or a frail or elderly patient may be “persuaded” that it would be better to die. [52] The primary judge was correct to dismiss the application to extend time because there is no argument that there has been a miscarriage of justice. [53] I would dismiss the appeal. Order [54] The appeal should be dismissed. [55] ATKINSON J: I agree with the reasons of White JA and the order she proposes. [56] MARTIN J: I agree with White JA. -- 15 of 15 --