Leading law professor proposes strengthening ‘reckless indifference’ murder definition

Fourteen people are accused of murder and manslaughter arising from the 2022 death of Elizabeth Struhs after they allegedly withheld her insulin and a legal expert said it is not good enough that the Crown case rests on a mind-reading exercise.

Police have charged 14 people over the alleged murder of eight-year-old Toowoomba girl Elizabeth Rose Struhs.

A leading legal mind suspects the 14 defendants charged over the 2022 death of Elizabeth Struhs have gained a slight advantage in their impending legal battle after it was decided the case would be resolved in a judge-only trial.

The 14 people include Elizabeth’s parents Jason and Kerrie Struhs, her brother Zachary Allen Struhs and several members of the family’s insulated Christian group, headed by Brendan Stevens.

Elizabeth was only eight years old when she died in her family’s Rangeville home on January 7, 2022 from diabetic ketoacidosis after she was allegedly denied insulin.

Police alleged Elizabeth’s parents and the Christian group believed she would be healed by God.

University of Southern Queensland Associate Professor Andrew Hemming said removing a jury from the courtroom would take a lot of emotion out of the decision making.

“It is interesting that it was the Crown that asked for the matter to get a judge-only trial and suspect that it was done for administrative convenience,” he said.

Brendan Stevens is accused of murder arising from 2022 death of Elizabeth Struhs. He is the lead of the reclusive religious group that included Elizabeth’s family.

“There are 14 defendants and the trial is expected to run for three months.

“There is a degree of notoriety associated with the trial, but it was the same case with Dr Jayant Petel case (in 2010) but that request for judge-only trial was denied on the condition the community standards should decide the outcome.”

The defendants include Zachary Alan Struhs, 20, Loretta Mary Stevens, 66, Therese Maria Stevens, 35, Andrea Louise Stevens, 33, Acacia Naree Stevens, 30, Camellia Claire Stevens, 27, Alexander Francis Stevens, 24, Sebastian James Stevens, 22, Keita Courtney Martin, 21, Lachlan Stuart Schoenfisch, 32 and Samantha Emily Schoenfisch, 24.

It is understood the defendants in the Struhs case did not object to the Crown’s request.

“The symptoms of diabetic ketoacidosis include excessive urination, thirst, abdominal pain, vomiting, weakness, lethargy, altered levels of consciousness, incontinence and finally coma and death,” Assoc Prof Hemming said.

Kerrie Struhs, mother of Elizabeth Struhs, had her charges downgraded to manslaughter.

The trial is set to challenge the updated definition of murder in the Queensland Criminal Code, which was widened in 2019 to include reckless indifference to life.

The Crown will have to prove that the defendants knew that death was the probable outcome of withholding Elizabeth’s insulin and that they chose to disregard that knowledge.

Now that the matter has been moved to a judge-only trial, it can be revealed that both Kerrie and Jason Struhs pleaded guilty to failing to provide the necessaries of life in 2021.

This dated matter relates to an incident in 2019 when the couple withheld Elizabeth’s insulin and she fell into a coma.

Jayde Struhs (left) with her sister Elizabeth Rose Struhs (right).

Mr Struhs took Elizabeth to the Toowoomba Hospital, weighing just 13.4kg, where she later recovered and was released back into his care.

Mr Struhs received a suspended jail sentence while Mrs Struhs was jailed.

She was released from prison just three weeks before Elizabeth died.

Assoc Prof Hemmings said it was likely the accused would argue that their conduct did not meet the definition of “reckless indifference”.

Assoc Prof Hemming said that definition is not clearly stated in the criminal code, leaving judges to rely on common law and a notorious test case from the High Court involving a drunk driver who crashed a truck into a bar in the Northern Territory in 1983, killing five people.

“The Crown has to prove the defendants had knowledge that death was probable outcome,” he said.

Jason Richard Struhs and Kerrie Elizabeth Struhs were both charged with the murder and torture of their daughter Elizabeth Rose Struhs. Mrs Struhs changes have since been downgraded. Supplied

“This is a test case of the point of reckless ‘indifference’ because the defendants are saying they were not indifferent, they wanted Elizabeth to survive.

For future cases, Assoc Prof Hemmings wants to see the definition strengthened with an objective that constitutes ‘criminal indifference of life’.

“As it stands, the Crown has to prove something is the head of a defendant, like intention or knowledge that an action will ‘probably’ lead to death whereas an objective test would hinge on what a reasonable person might have knowledge of.

“The Queensland Government introduced this ‘reckless indifference’ clause, and left it to the judges to decide what they meant.

“Surely we can do better.”

Originally published as Leading law professor proposes strengthening ‘reckless indifference’ murder definition