Is she guilty?

[45] Mr Grotjohn was acquitted of his wife’s murder on the ground that her death had been occasioned by her own independent act in committing suicide and that this broke the chain of causation between any action on his part and her death. In reaching that conclusion the trial court relied on an earlier, somewhat different case, involving a failed suicide pact.[47] There, the wife of a married man engaged in an affair confronted him over the affair. After he broke the news to his girlfriend, they discussed the impossibility of their situation and decided to commit suicide together. To that end he acquired sleeping pills in addition to some he already had in his possession and that evening they went to a secluded spot near a beach, divided the pills into two equal portions and consumed them together. Some hours later he awoke and found that his girlfriend was dead beside him in the car. He then tried to commit suicide by drowning but was rescued by fishermen. On his trial for the murder of his girlfriend he was acquitted on the basis that her independent act in committing suicide was the cause of her death.

[46] Mr Grotjohn’s acquittal caused the Minister of Justice to refer to this court the following questions: [48]

‘(a) Whether encouraging, providing the means for or helping a man or woman to commit suicide was a crime? and

(b) If so, what crime?’

[47] The judgment dealt at length with the question whether suicide or attempted suicide was a crime and concluded that they were not. It then said that this did not mean that the first question posed to the court had to be answered in the negative. A person who encouraged, provided the means for or assisted a suicide to commit suicide was concerned with the life of that person and their criminal liability had to be determined in accordance with the ordinary principles of our criminal law. In both Grotjohn and Gordon the actions of the accused had formed part of the factual complex leading up to the death of the deceased. The trial courts had proceeded on the footing that the independent actions of the deceased had interrupted the causal chain between the accused’s actions and the deceased’s death in each case. While the correctness of those findings in each case was not questioned, as it did not fall within the compass of the questions and the records of the trials were not before the court, Steyn CJ said that:

‘I would not subscribe to a general proposition that the final “voluntary and independent” act of the suicide must always result in the acquittal of the accused, without reservation in regard to the independence of that act.’ (My translation.)[49]

[48] Steyn CJ went on to explain that the fact that the immediate cause of the suicide’s death is the act of suicide, does not necessarily interrupt the chain of causation between the conduct of the accused person and that person’s death, so as to free the accused from criminal liability. In other words, not every subsequent event that leads to a particular consequence is to be viewed as a novus actus interveniens (an intervening cause). To have that effect the intervening cause must be a completely independent action (‘n volkome onafhanklike handeling’) in the sense of being separate from and unconnected to the earlier conduct.

[49] In a lengthy passage that requires careful consideration Steyn CJ went on to say that: [50]

‘Where the [deceased’s] act formed a calculated part of the chain of events that the [accused] set in train, an event that he foresaw as a possibility and desired to bring about in order to achieve his goal, or was something on which he could rely to bring about the desired result, intention would also not be lacking, and it would be contrary to accepted legal principles and every sense of justice to permit [the accused] to shelter behind the [deceased’s] act as a subsequent intervening act. That it [suicide] is not a crime does not make a difference. So too, I consider that it is obvious that the suicide’s final act, although it may be his own independent act and the immediate cause of his death, is not necessarily a completely independent act in the abovementioned sense, and that its non-criminality is rarely relevant to the causative impact of the actions or conduct of the person who encouraged, helped or enabled the deceased to commit suicide. It is reasonably conceivable that the intended action or conduct [by the accused] may be an immediate contributory cause of the final deed. Someone, for example, who provides another with the means whereby he wishes to commit an act, contributes to the act and its outcome, and the employment of the means and its consequences would justifiably be seen as the direct result of the provision of the means. The conclusion can hardly be avoided that he who provides the desired or necessary means for an intended suicide, has a causative role therein if suicide is committed; and if he does that willingly and knowingly, with the requisite intention of putting an end to the life of the person who wishes to commit suicide, he is guilty of murder even though the final act is performed by the non-criminal hand of the deceased, because he [the accused] has then unlawfully and intentionally complicit in ending the life of another. If the act is not completed then he is likewise guilty of attempted murder.’ (My translation and emphasis. The insertions are made for the sake of clarity.)

[50] Steyn CJ found support for this in Peverett. This was another case of a failed suicide pact, but in that instance neither party died. They sat in a car and the accused led a pipe into the interior and tried to seal it so that exhaust gases would fill the car and kill them both. For reasons that are unexplained, while they both lost consciousness and the woman nearly died, they were rescued and survived. He was convicted of her attempted murder and sentenced to pay a fine of £30. The conviction was upheld on appeal. In that case, unlike Gordon where each participant consumed their own pills, there was no intervening action by his lover. She simply acquiesced in his actions and made no attempt to get out of the car. So it was his actions that constituted the actus reus, there was no intervening cause or event, and a clear intention to bring about her death. Some commentators regard that as providing a distinction, while others regard the distinction as spurious.[51] However, both are different cases from that of a person who provides the means to commit suicide, but neither encourages nor performs any direct role in the act of suicide, and may seek to discourage it.

[51] Finally, Steyn CJ concluded:

‘In connection with encouragement and help corresponding considerations apply. Both the encourager and the helper could, in the light of the circumstances of the particular case, be found guilty of murder or attempted murder.

In the situations under consideration the possibility of culpable homicide cannot be excluded. Naturally that would have to be determined in accordance with applicable legal principles.’[52] (My translation and emphasis.)