This case is interesting because it considers s 311 Criminal Code 1899, the offence of aiding suicide, which has not been the subject of extensive judicial consideration. In this case, the appellant sought to appeal his conviction and sentence of 10 years for aiding the suicide of his wife. The Court of Appeal dismissed both appeals and in so doing held that the appellant’s offences were “extremely serious” examples of offending under s 311 Criminal Code 1899. This note is specifically concerned with one question on appeal as to what is required by way of direction to the jury about the elements of the offence of aiding another in killing himself or herself.
Sofronoff P, Mullins JA and Boddice J
19 June 2020
The deceased died, aged 56, in her car from acute carbon monoxide poisoning. . The source of the fumes was a petrol generator in the boot of the car. . The day before her death, the deceased told the appellant she was going to kill herself and asked him to accompany her to Bunnings Warehouse to buy a generator. The appellant did so. The next afternoon, being a Sunday, the appellant went to church. The appellant left the car containing the generator at the house and drove to church in another car. By the time he returned, the deceased had killed herself. , .
During his interview with police, the appellant initially denied any knowledge of the purchase of a generator but subsequently admitted that he had in fact accompanied the deceased to buy it. . He also told police that while he did not know that his wife was going to kill herself, he believed that there was a good chance that she would. , , .
Prior to her death, the deceased had three life insurance policies which named the appellant as the sole beneficiary. The appellant stood to inherit $1.4 million dollars. –.
On 2 October 2018, a jury found the appellant guilty of two counts of aiding suicide. . Count 1 related to the appellant counselling the deceased to commit suicide. There was evidence to suggest that, amongst other things:
- the appellant had told the deceased that she was not strong enough to survive “the raptures or the Armageddon” and that it would not be a sin to commit suicide. The deceased had told her sister that she was born again in the appellant’s church; ;
- the appellant had told the deceased about a pain free way to commit suicide; , ; and
- the appellant had described to the deceased, the act of an individual who had committed suicide and left the insurance money to his partner, as “an amazing and wonderful thing” to have done.  (see also ).
Count 2 provided that the appellant aided the deceased in killing herself, including by taking her to Bunnings Warehouse and leaving her at home while he went to church with the car containing the generator. .
On 2 November 2018, Davis J sentenced the appellant to 10 years’ imprisonment in respect of the first count and a concurrent six year term in respect of the second count. The appellant is to become eligible for parole after he has served fifty per cent of the sentence of 10 years’ imprisonment. , .
The Court dismissed all four grounds with respect to the conviction and the sentence appeal. Sofronoff P described the case as “a paradigm case that exhibits the wickedness of the offence of counselling and thereby inducing a victim to kill herself ”. , .
This note concerns the first ground of appeal, being that the learned trial judge erred in directing the jury as to the elements of the offence of Count 2. .
What is required in a jury direction about the elements of the offence in s 311?
Section 311 of the Criminal Code provides:
“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.”
In respect of Ground 2, being that the appellant aided his wife to kill herself, the trial judge’s directions to the jury included:
“Therefore, the Crown must prove beyond reasonable doubt than when the acts of aiding were done by the accused, the accused knew that the deceased would or may kill herself by using the generator to cause her death by carbon monoxide poisoning.” , . (Emphasis added).
The appellant argued that the use of the word “may” was too broad and suggested to the jury that a mere possibility of the outcome in the mind of the aider was sufficient in order to establish guilt. .
Boddice J explained that the expression “would or may kill herself” must be put into its context. . This direction to the jury recognised that the jury was considering the appellant’s intention to aid his wife, in the context of the jury also needing to be satisfied that the deceased had done an act which caused her own death with the intention that the act would cause her death. .
Considered in this context, “may” did not suggest to the jury that a “mere possibility” of that outcome occurring was sufficient to establish aiding another person to kill themselves. .
Acknowledging that there was limited judicial discussion on s 311, both Sofronoff P and Mullins JA drew an analogy with the concept of “aiding another in committing the offence” in s 7(c) of the Code. , . Section 7(c) provides that a person is guilty of an offence if they “aid another in committing the offence”. . The cases in respect of s 7(c) demonstrate that “there must be a connection” between the state of mind of the aider and the acts of the aider in relation to the offender – they must do the act intending that the outcome of their assistance will be the offence. .
President Sofronoff’s analysis of s 7(c) demonstrates that “questions about likelihood are irrelevant ” to s 311. . Unlike s 311, where a person aids another to commit an offence in s 7(c), questions may arise as to what offence the aider had in mind if more than once offence was intended by the offender or if the offender committed an offence different to the one originally contemplated. . These issues do not arise in respect of s 311 where someone aids someone else to commit suicide. As Sofronoff P explained:
“If the appellant did the things that he admitted doing with the intent of helping [the deceased] to kill herself, then whether she was likely or unlikely to kill herself is beside the point. If the appellant acted to help her in killing herself then, once she had actually killed herself with his aid, he was guilty of the offence … ” .
His Honour therefore held that the words “would or may kill herself ” must have been recognised by the jury as relating to the object of the appellant’s intention. It was clear to the jury that the “question as to the appellant’s state of mind was whether the appellant’s acts of aiding were intended by him to assist Ms Morant ‘in killing herself’. It was enough to prove that the appellant intended his actions to assist her in killing herself ”. .
Williams JA noted that when a person assists another to commit suicide, their acts may not be contemporaneous with the act of suicide and therefore “the aider cannot know with certainty that suicide will take place”. . The prosecution is not required to prove that suicide “was a probable or even possible outcome” at the time the assistance was given to the person to enable them to kill themselves. .
A Hughes of Counsel
Editor’s Note: The first instance decision is reported at  2 Qd R 501.