Seales v Attorney-General

JurisdictionNew Zealand
CourtHigh Court
JudgeCollins J
Judgment Date04 June 2015
Neutral Citation[2015] NZHC 1239
Date04 June 2015
Docket NumberCIV-2015-485-000235

[2015] NZHC 1239




Under the Declaratory Judgments Act 1908 and the New Zealand Bill of Rights Act 1990

Lecretia Seales

A S Butler with C J Curran, C M Marks, M L Campbell and E J Watt for Plaintiff

Mr M Heron QC, Solicitor-General with P T Rishworth QC, E J Devine and Y Moinfar for Defendant

M S R Palmer QC and J S Hancock for Human Rights Commission

V E Casey and M S Smith for Care Alliance

K G Davenport QC with A H Brown and L M K E Almoayed for Voluntary Euthanasia Society of New Zealand (Incorporated)

Application by a terminally ill plaintiff for declarations that it would not be contrary to s160(2)(a) (homicide is culpable when it consists in the killing of any person…[b]y an unlawful act…) Crimes Act 1961 (CrA) for her doctor to administer a drug to assist her to die or to provide medication for her to taker her own life — in the alternative, application for a declaration that s179 CrA (aiding and abetting suicide) was not consistent s8 (right not to be deprived of life) and s9 (right not to be subjected … to cruel, degrading, or disproportionately severe treatment) New Zealand Bill of Rights Act 1990 (NZBORA) — whether the plaintiff's consent provided a lawful excuse — whether under s179 CrA, respect for personal autonomy prevailed over the sanctity of human life — whether the term “suicide” in s179 excluded “rational decisions to die” — whether the situation in the plaintiff's case was substantially similar to a person who declined to receive life sustaining medical services — whether s160 and s179 CrA were inconsistent with s8 and s9 NZBORA in the circumstances of the plaintiff's case — whether by depriving her of the opportunity to bring her suffering to an end, the State, through the offence provisions of the CrA, was subjecting the plaintiff to cruel, degrading or disproportionately severe treatment.

Held: S's case engaged four principles. The first was the sanctity of life. However the sanctity of life was not an absolute principle ( Airedale NHS Trust v Bland and Auckland Area Health Board v Attorney-General). There were occasions where the principle of sanctity of life had to yield to other principles, such as accepted standards of medical practice ( Shortland v Northland Health Ltd).

The second principle was the respect for human dignity. The importance of human dignity in the international human rights system was evidenced by its inclusion in major international human rights instruments, including the Universal Declaration of Human Rights. New Zealand human rights cases emphasised the importance of human dignity.

The third principle was the respect for individual autonomy. In the context of this case, this meant self-rule that was free from both controlling interference by others and limitations that prevented the individual from making meaningful choices about his or her body. From a legal perspective, respect for individual autonomy underpinned the human rights principles of freedom, liberty and security of the person.

The fourth principle was protection of the vulnerable. It was, however, important to ensure that medical judgements were not based on assumptions as to vulnerability, as this would devalue respect for the principle of individual autonomy. S's statement of her belief that she was not vulnerable had to be respected. S's application for the declarations was a rational and intellectually rigorous response to her circumstances.

The legislative analysis of the relevant offence provisions had to focus on their text and purpose. It was helpful to refer the report of the Criminal Code Commission 1878, which produced the draft criminal code (known as the Stephens Code) from which the CrA was drafted. The CrA also had to be interpreted in the context of contemporary circumstances, recognising that the meaning of legislation was not fixed in perpetuity and that the requirements of s6 NZBORA (Interpretation consistent with Bill of Rights to be preferred) meant legislation might have to be given an interpretation that was not envisaged at the time of its enactment.

Under the common law, a person's consent to their death was irrelevant to the guilt of the party whose acts led to that death. This was adopted in s63 CrA (consent to death). However modern authority suggested that s63 CrA was only engaged in cases where death was intentionally inflicted and not those where death resulted from misadventure. Applying a textual and purposive approach to the meaning of s63 CrA led to the conclusion that where A killed B by an unlawful act with the intention of bringing about B's death, the consent of B to the infliction of death could not affect A's criminal responsibility. This applied to “mercy killings” because the interest of the State in preserving life overrode the otherwise all-powerful interest of patient autonomy ( Airedale NHS Trust v Bland).

S's consent would not provide a lawful excuse to her doctor if she “administered aid in dying” to S.

Section 164 CrA (Acceleration of death) reflected the common law position that a person could be criminally responsible for a death if he or she caused it to occur sooner than it would otherwise have happened. The acts or omissions in question, however, had to constitute more than a minimal contribution to death. Importantly in the context of palliative care, acts or omissions that had the indirect but foreseeable effect of accelerating death were not necessarily criminally culpable. This was known as the “double effect” principle. According to the double effect principle there was a morally relevant distinction between the intentional effects of a person's acts or omissions and the unintended, though foreseeable, effects of those actions.

If S's doctor were to administer a lethal dose of pain relief such as morphine to S, the doctor's actions might not be an unlawful act within the meaning of s160(2)(a) CrA if the doctor's intention was to provide S with palliative relief, and provided that what was done was reasonable and proper for that purpose, even though S's life would be shortened as an indirect but foreseeable consequence.

Section 160(2)(a) CrA provided that homicide was culpable when it consisted in the killing of any person by an unlawful act. The definition of unlawful act was introduced with effect from 2012. It broadened the previous position set out in R v Myatt that an unlawful act had to be a breach of “some Act, regulation or bylaw”. The expanded definition in the CrA now recognised that a breach of a rule could constitute an unlawful act. It was not necessary to establish the commission of a specific offence in order to establish an unlawful act for the purposes of s160(2)(a) of the Crimes Act. Evidence of a breach of a “rule” would suffice.

It was not necessary to decide if a rule would be breached. If S's doctor were to administer a fatal drug to S with the intention of terminating her life, two offences might be committed. First, the doctor would probably commit an assault, contrary to s196 CrA (Common assault). By administering a lethal drug, the doctor would intentionally apply force to S, either directly or indirectly, by the lethal drug being inserted into S, or through the pharmacological effects of the lethal drug on S's body. Second, the doctor would, in all likelihood, also breach s200 CrA, which made it an offence to administer a poison or other noxious substance to another person intending to cause him or her grievous bodily harm.

The purpose of the prohibition on assisting a person to commit suicide was to protect the vulnerable in society ( Carter v Canada (Attorney-General)). S had argued that the only purpose to s179 CrA (Aiding and abetting suicide) was to protect the vulnerable and that Parliament intended that when giving effect to s179(b) CrA (…liable to imprisonment for a term not exceeding 14 years … [if] aids or abets …suicide), the principle of individual autonomy should prevail over the sanctity of life.

However s41 CrA (Prevention of suicide or certain offences) did not distinguish between the vulnerable and those who might commit a “rational suicide”. If s41 was to have any effect, it had to apply to all suicides. The 1961 decriminalisation of attempting suicide combined with the retention of s179 and the adoption of s41 and s180 demonstrated Parliament gave effect to two objectives. First, the absolute protection of the lives of all who were vulnerable. Second, recognising that suicide was not an offence, s179 aimed to protect, so far as was reasonably possible, the lives of those who were not vulnerable. Parliament was not placing respect for personal autonomy over the sanctity of human life. The policy of the law remained firmly adverse to suicide.

S's approach to the meaning of “suicide” as excluding “rational decisions to die”, faced challenges in giving effect to s41 CrA Act. It was difficult to see how a person who intervened to prevent a suicide could assess whether or not he or she was intervening in a case of “rational” suicide.

There was an important distinction between those who ended their lives by taking a lethal drug and those who declined medical services and died from natural causes. There was also a distinction that could be drawn between those who ended their lives by taking a lethal drug, those who were coerced into taking their own lives, and those who took their own lives for altruistic purposes. Those distinctions led to the conclusion that S would commit suicide if she took a fatal drug supplied to her by her doctor and died from that drug. There were three factors which established this:

(1) S would be intending to bring about her death; and

(2) S would be acting voluntarily and not altruistically or subject to coercion;...

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2 cases
  • Kempson v R
    • New Zealand
    • Court of Appeal
    • 18 December 2020
    ...33 James Fitzjames Stephen A Digest of the Criminal Law (Crimes and Punishments) (5th ed, MacMillan and Co, London, 1894). See also Seales v Attorney-General [2015] NZHC 1239, [2015] 3 NZLR 556 at 34 R v Donovan [1934] 2 KB 498 (Crim App) at 507, citing Stephen, above n 33. 35 R v Bradsha......
  • Neville v Attorney-General
    • New Zealand
    • High Court
    • 17 August 2015
    ...AC 396 (HL). 19 Falwasser v Attorney-General [2010] NZAR 445 (HC). 20 R (on the application of Pretty) v DPP [2002] 1 AC 800 (HL); Seales v Attorney-General [2015] NZHC 1239 at 21 Rodriguez v British Columbia (Attorney-General) [1993] 3 SCR 519 at 612. 22 Vaihu v Attorney-General [2007] NZ......

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