Carter v Attorney-General

In this case the appellant appealed against the dismissal of his application to review the decision of the Attorney-General not to refer his case to the Court of Appeal pursuant to s 672A of the Criminal Code following his unsuccessful petition to Her Excellency the Governor of Queensland to exercise the prerogative powers of the Crown to pardon him in respect of his murder conviction or, alternatively, to exercise the prerogative of mercy in his favour.

The appellant was convicted of murder in 2000 after he had injected Gail Marke with heroin intending that this would kill her in accordance with her expressed wish to die in this way. Evidence of a pharmacologist given in the trial was to the effect that the toxicology screening of the deceased revealed other drugs, as well as differently aged derivatives from heroin, and concluded that the heroin injection “could be a significant contribution but … [not] a substantial contribution given all of the other confounders” (R v Carter [2005] QCA 515, [11]). On appeal from his conviction, the Court of Appeal, after considering the legal nature of causation, held that the jury was entitled to be satisfied beyond reasonable doubt that the appellant had killed the deceased (R v Carter [2005] QCA 515, [13]).

The appellant contended that a miscarriage of justice had occurred by 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 of death. It was argued 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 causation were 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, would be guilty of murder. This would defeat the purpose of s 311.

In rejecting the appellant’s contention and dismissing the appeal, White JA, with whom the other members of the Court agreed, observed that “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”. Her Honour held that to kill someone by a positive act, with the requisite intention, is murder, even though that person expressed a desire to die.