Expanded definition of murder fails short on first big test

A criminal law expert has explained why a father was found not guilty of murder despite withholding insulin that his daughter needed to keep her Type 1 diabetes in check.

The father of a young girl who allegedly withheld her insulin - resulting in her death - made a frank admission to police after his daughter was raced to hospital years before.

The first major test for Queensland’s expanded definition of murder as result of reckless indifference for life has left a criminal law expert wondering if the legislation should be changed.

Jason Struhs was charged with murder arising from the 2022 death of his 8-year-old Elizabeth Struhs after he intentionally withheld her lifesaving insulin.

At the two-month long judge-only trial, the court heard Jason made this decision under pressure from his wife Kerrie Struhs and the members of a small, insular church group called The Saints, which is headed by Brendan Stevens.

Mr Stevens was also charged with murder, while Mrs Struhs and the remaining 11 adult members of the church were charged with manslaughter.

The presiding judge, Martin Burns, handed down his ruling on Wednesday, and found all the accused guilty of manslaughter, downgrading the Mr Struhs and Mr Stevens murder charge.

Associate Professor Andrew Hemming from the University of Southern Queensland’s School of the Law said the findings show the difficulty of securing a conviction based on reckless indifference.

“I found his arguments a little cautious and very narrow in Justice Burns’ attitude towards Jason Struhs,” he said.

“You either take the view that this is such an unusual case that it has to be dealt with on its facts alone or you take the view that this narrow interpretation of reckless indifference to human life raises questions about whether or not the test should be changed.”

Prof Hemming said the difficulty laid in the subject test applied to Mr Struhs’ decision making.

He pointed to Justice Burns’ conclusion that as a result of the overborne pressure for his wife, the church and its teachings, Mr Struhs may have thought God would save Elizabeth, and that taking away insulin would not kill her.

This is despite the full weight of medical evidence that withholding insulin from patients with Type 1 diabetes would be fatal.

“It was not an objective test, it was about what Mr Struhs was thinking, and not what a reasonable person was thinking,” Prof Hemming said.

Added to this was the role Kerrie played.

While she was not charged with murder, Mr Hemming said Kerrie was an active participant in the decisions that led to her daughter’s death.

“I see Kerrie – and I’m wondering if Justice Burns saw her – as the Lady Macbeth in this, she put the pressure on Mr Struhs, she said the marriage is over unless he comes into the church,” he said.

With all 14 members now found guilty of manslaughter, the deck is cleared for Justice Burns to apply the sentences at a sitting on February 11.

Prof Hemming said the jail terms would be graded by each killer’s level of responsibility, regardless of what their original charges were.

“I would be very surprised if Kerrie does not get the same level of sentence as Jason,” he said.

“Brendan is the leader of the sect, and Kerrie leans on him if she needs to, but she is the one burrowing away, she is the one in the marital bed, she is who he has had these children with, she is the architect in my view.

He pointed to Justice Burns’ remarks as an indicator of where responsibility lies.

“Justice Burns said Kerrie owed a duty of care and such an egregious departure from the duty is deserving of punishment,

“He said it involves such a grave moral guilt and disregard for human life, it constitutes at the very minimum criminal negligence.

“He said Elizabeth’s death was foreseeable and it amounted to criminal negligence

“So that is a very strong language.”

Originally published as Expanded definition of murder fails short on first big test