Justins v The Queen: assisted suicide, juries and the discretion to prosecute

Juries are often a crucial protection for citizens against unjust or highly controversial laws. The decision whether to proceed with a prosecution rests on the discretionary powers of prosecutors. In cases where the community is deeply divided over right and wrong, it appears that there is, at times, a transference from the public of thwarted law reform aspirations which can create difficult tensions and expectations. This case commentary considers an appeal by Shirley Justins following her conviction for manslaughter by gross criminal negligence as a result of her involvement in the mercy killing of her partner, Mr Graeme Wylie. The morally unsettled nature of the charges brought against her, her own initial plea, the directions given to the jury by the trial judge and even the basis of her appeal resulted in a convoluted and complicated legal case. Spigelman CJ and Johnson J ordered a new trial, Spigelman CJ stating that it was open for a new jury to consider (a) if Mr Wylie lacked capacity; and (b) whether there was criminal involvement by one person in another's death. Simpson J found that further prosecution on the count of manslaughter would amount to an abuse of process and that an acquittal should be entered. This case highlights how fundamentally unsettled are the publicly much debated and persistently contentious issues of euthanasia, assisted suicide, the right of a person to die a dignified death and the way their capacity in that respect should be assessed. It perhaps asks us to reconsider the role of juries and the exercise of discretion by Directors of Public Prosecutions in areas of law where the community and law-makers are deeply and intractably divided.