Damned if I Do (11 page)

TWELVE

The courage of Caren Jenning

I am going to end my life. I am not going to die in gaol.

Caren Jenning to the author, September 2008

I
n 2005, Caren Jenning was seventy-five years of age and in remission from breast cancer. She was a long-time Exit member and the informal coordinator of our Sydney chapter. Over the years, Caren often mentioned that she had various friends who wanted information about end of life drugs. While some of them joined Exit and came to
workshops for this purpose, Caren's friend of forty years,
Graeme Wylie, a retired Qantas pilot who had been diagnosed with Alzheimer's disease, said he had no time for this ‘Exit Club', as he called it. However, by late 2005, Graeme's health problems were spiralling out of control. He told those around him that he wanted to end it before he got to the stage where he couldn't ‘wipe his bum or recognise
Shirley', his partner of more than two decades. Caren contacted me and said that Graeme wanted to go to
Dignitas, the Swiss organisation that provides an assisted suicide service to foreigners. She asked if I could talk to him.

Graeme applied to go to Dignitas, only to be rejected. I hate to admit that I did play a role in his rejection, but I felt I didn't have much choice. At Dignitas's request, I went to see Graeme at his home in Cammeray on Sydney's North Shore. I could see why he wanted to die. He was in that terrifying period of knowing that dementia was setting in and being absolutely panic-stricken at the thought, but being too disorganised because of the dementia to do anything about it.

In my report back to Dignitas, I stated that Graeme was affected by dementia but that he also had insight into his condition. He was quite confused on some levels when I ­visited him, but did know he wanted to die; he said it to me over and over: ‘I just want to die.' He had already made two failed attempts to kill himself: first, with a drug ­
overdose where he took non-lethal sleeping tablets, and then by using carbon monoxide in the exhaust gas of a lawn mower. Dignitas, though, has strict rules about the mental condition of people it admits to its program, and on learning of his dementia, they rejected his application.

Caren, as Graeme's close friend, was distressed as she watched his deterioration and soon decided that enough was enough. She arranged to go to
Mexico to buy Nembutal for herself and for Graeme, including a spare bottle for another Exit member who helped pay for her trip. As promised, on return Caren gave one of the Nembutal bottles to
Shirley. Shirley passed it to Graeme, who poured it into his glass. His dying words were: ‘Peace at last.'

While Graeme got the peaceful death he wanted, he left chaos in his wake. The doctor who'd been called to confirm the death was suspicious and refused to sign his death certificate. An autopsy was performed, and the lethal drug was found throughout Graeme's body. The question was immediately asked as to where the Nembutal had come from. Caren and Shirley had feared that this might happen and had concocted a cover story, with Caren saying her trip to Mexico had to been to visit her ailing sister, the 1950s Hollywood starlet
Dana Wynter, in California. While Caren did visit Dana, the police were not convinced of her innocence. Over the next six months, the authorities tapped Caren and Shirley's phones, and in Febuary 2007, both women were arrested and charged with assisting Graeme's suicide. In a bizarre twist, neither woman was granted bail, so they spent a week in gaol at Silverwater in Sydney's west. With their joint plea of ‘not guilty', a joint Supreme Court trial date was set.

At the trial preliminaries, I was informed that I would be interviewed, with the possibility I would be called as a prosecu­tion witness. The Crown prosecutor was
Mark Tedeschi QC. He is a formidable advocate, who builds cases juries tend to believe. It's not stretching things too far to say that controversy always follows him. To this day, he is the only New South Wales prosecutor who's ever faced a legal tribunal over allega­tions of professional misconduct (of which he would later be cleared). Infamous cases in which Tedeschi's conduct has attracted public criticism include Gordon Wood, Keli Lane and the 1990 prosecution of the 1978 Hilton bombers.
1

On 12 May 2008, I walked into the Supreme Court of New South Wales, planning to just sit there and watch until I was needed. I was quickly asked to leave, and discovered that a witness to be called is not normally allowed to hear the proceedings before giving their evidence. So, I missed the first few days of the trial, and was worried about just what Shirley would say and whether or not she would implicate me in Caren's decision to obtain the Mexican drug. I'd had assurances from Caren that Shirley would not turn Judas, but the reports I was getting on the tactics of her QC,
Peter Bodor, made me feel uncomfortable. Blaming anyone but Graeme for the mess he'd left Shirley in was understandable, but I did not want to become the sacrificial lamb. Despite a few tense moments though, Shirley was true to her word and avoided implicating others.

When I was finally called to give evidence, Tedeschi focused on a meeting I'd had with
Caren and Shirley one morning on Pier 1 in The Rocks in Sydney, and I was given a rough time. He pressed hard, relentlessly trying to get me to admit that I was instrumental in Caren's decision to go to
Mexico to source the drugs. As a witness, you're at a real disadvantage because you can never make much of a statement. You are expected just to answer ‘yes' or ‘no' to any question asked; embellishment and detail are unwelcome, especially when the prosecutor is trying to steer you in the direction he wants. Tedeschi kept pushing for an admission; I kept denying his suggestions. And he did make several blunders.

The first was almost funny, and happened when Tedeschi handed me a copy of my banned
Peaceful Pill Handbook
. I handed the book straight back to him. Accepting it, he then read from the chapter about Mexico, saying something like, ‘From what you've written here, you must have known exactly what would happen when you discussed options with these women.' I replied, saying I couldn't answer that question, given that he was quoting from a banned book and I then
looked at the judge,
Mr Roderick Howie, for direction. His Honour asked if Mr Tedeschi had any privilege to use a banned book in the court room. Tedeschi looked blank, and looked at his junior, who also looked blank. A quick conversation about legal principles then took place and the trial seemed heading towards high farce. The jury were sent out while further legal arguments were made, with the outcome that the line of questioning based on information on Mexican Nembutal from my book was struck out.

Just as I was feeling pleased with myself for having won that round with Tedeschi, court was adjourned for the weekend. When it resumed at 10 a.m. on Monday, the ground shifted from beneath us all.

I distinctly remember sitting on the cold wooden bench outside Supreme Courtroom No. 2, in King Street, Sydney, waiting to be called to continue my evidence when people started to run backwards and forwards in an agitated way. Finally, I found the cause for all the excitement: Shirley had changed her plea to one of guilty of assisted suicide. She would tell me later she just wanted it over and was sick of watching as her experience in caring for an increasingly demented partner became fodder for the prosecution's antics. However,
Tedeschi, being the hard-nosed prosecutor he was, was having none of it and refused to accept the plea change. Evidence began to emerge about Shirley's alleged lesbian relationship with a woman in Germany and her increasingly stressful time with the demented Graeme, and she seemed to have a possible new motive. Expert witnesses had begun suggesting that Graeme was too demented to make
any
decision about his future; Tedeschi joined the dots and attacked, arguing that Graeme had not suicided at all, rather that he had been murdered.

All of a sudden, Caren's world collapsed. Initially, Shirley had wanted to plead not guilty to the charge of assisting a suicide, to argue every point and tough it out. Her lawyers though had persuaded her that the wisest course was to plead guilty to this charge and try to get a lenient result. Now the women found themselves being charged with murder. Caren felt betrayed by the plea change and realised she was now part of something she could not control. From that day on, the two women sat at opposite ends of the wooden bench in the historic dock of courtroom 2.

I don't have much faith in the jury system. On the volun­tary euthanasia issue particularly, I've watched as panels of my fellow citizens are made to feel that without ­delivering a guilty verdict, they haven't done their job. I saw it in the trial of Caren and Shirley, and I've seen it more recently, in Brisbane, when a naïve school teacher,
Merin Nielsen, was found guilty of
assisting in the suicide of his friend, Exit member
Frank Ward.
2

In June 2009, Merin helped Frank die, by going to
Mexico and bringing Nembutal back for him. In return, Frank left his modest estate to Merin, something to which Frank's family had agreed. Despite Frank having made his instructions, and the reasoning behind them, very clear, the jury decided that Merin was only helping Frank so that he might inherit, and found him guilty of assisting in Frank's suicide. Justice
Jean Dalton said she could see no reason for leniency and sentenced Merin to three years' jail, with a non-parole period of six months. When sentencing, she said their relationship was about more than just ‘philosophical chats' and that the fact that Merin was the sole beneficiary in Fred's will was ‘relevant' to the sentence he would receive. As I watched the sentencing I thought,
Well who else would Frank leave his money to but his closest friend? And who else but Merin would be likely to help Frank die?
Assistance and inheritance will commonly be linked, and to suggest that they shouldn't be seems to me naïve.

In Caren and
Shirley's case, the Crown suggested a ­similar motive, and the showman Tedeschi was just the person to do it. He played to the jury and his expert witnesses did likewise. The defence lawyers were likeable enough, but they were no match for the Crown. As
Tedeschi painted Caren as evil and manipulative, her barrister,
Michael Williams, QC stayed silent. The prosecutor wove a story about the type of relationship
Graeme had with Shirley; about the type of friend Caren was to Graeme; and about the problematic fact that his will had all but left out his daughters from a ­previous marriage (Graeme had said they already got their fair share after their mother's death some years earlier). But, by the end of the evidence, Tedeschi had managed to persuade the jury to his way of thinking. Shirley was found guilty of ­manslaughter. Caren was found guilty of being an accessory.

During what must have been a momentary lapse of ­concentration on Tedeschi's part, bail was granted ­unopposed, with sentencing to take place in six weeks' time. While the two women were now estranged, an added complication was the attitude and behaviour of Graeme's two forty-something daughters. These women were no friends of their father's second wife. In court, they sat not in the public ­gallery, but with the prosecution legal team where they clearly felt most comfortable. As the likely beneficiaries of Graeme's ­multi-million-dollar estate, they had much riding on a guilty verdict.

Some media reports painted the whole trial as being about death, sex and money: that Shirley wanted Graeme dead so she could inherit his millions. But that begs the question: Who are you supposed to leave your worldly goods to if not the person who loves you, and who you love, the most in the world? It should come as no surprise to anyone that this special person will also be the person who helps you die.

I saw Caren fairly regularly over the intervening weeks before the sentencing date. I was often in Sydney and we'd have coffee, just as we had always done, at the Waratah Street tennis courts in Rushcutters Bay. At seventy-five, she was clever, brave and always enchanting. She was worried; she felt the stress of the trial had brought her cancer back. She was in increasing pain, and said life was an ordeal and that she craved a bit of peace. Of course what Caren was really saying, and she spelled it out clearly to me, was that she didn't want to die in jail. Who could blame her? Neither of us trusted Justice
Roderick Howie to be fair; at times I thought he'd acted like a petulant child in his courtroom. Jail did seem the most likely outcome.

One day, as the sentencing date drew near, Caren said to me, ‘I'm going to end my life,' and made a reference to never wanting to be handcuffed again. She knew we had a planned conference on dementia and the law in Sydney the following week to coincide with the sentencing, and asked if I would read out a statement from her—in fact, her suicide note—at that gathering. It was her choice and I knew she was serious. On Thursday, 21 September 2008, just days after her seventy-sixth birthday, Caren died peacefully and alone at her home in Lane Cove, drinking the
Nembutal from the other bottle she had brought back from Mexico. Her ­daughter,
Kate, had not known of her plans, and was heartbroken to lose her mother this way.

In retrospect, Caren was lucky to have died on her own terms, if not in her own time.
Justice Howie's lengthy judgment vilified her, depicting her as the evil prime mover in Graeme's death. He also accused her of cowardice, for ending her life and for not facing up to her sentence. This may have worked in
Shirley's favour though, and Howie seemed to soften when he moved on to her. He described her as a victim of others; meaning Caren, and, by extension, me. While his comments about Exit were unflattering, they were nothing like his denunciation of Caren. He sentenced Shirley to two years of periodic detention, with weekends in gaol in Wollongong.

Many people, particularly Graeme's daughters, saw this as an inappropriately lenient sentence. I can only ­imagine their disappointment when in October 2010, Shirley's appeal was upheld in the Court of Appeal and her conviction quashed. This court held that Justice Howie had erred in his ­instructions to the jury.