Crickitt v R

Crickitt v R - [2018] NSWCCA 240 - NSWCCA 2018 case summary — Zoe

[3]

Overview

The applicant and the deceased were married in 1991. At the time of her death the deceased was living with the applicant in a house at Woodbine, a suburb of Campbelltown. They were aged in their mid-late 50s. The applicant was a general medical practitioner and he worked at the Campbelltown Medical and Dental Centre (CMDC). There was some disharmony in the marriage. In addition, the applicant was involved in an affair with Ms Linda Livermore.
At some point during the night of New Year's Eve 2009 the applicant left home and went to Ms Livermore. He returned home the next morning and at 8.45am rang the emergency services number and reported, "I've just come home and found my wife on the floor. She's dead".
An autopsy examination was carried out but a cause of death could not be determined. A coronial inquest was held in 2011. On 3 December 2014 the applicant was arrested and charged with murder.
The Crown contended that the applicant caused the death of the deceased by administering an injection of insulin. The Crown Prosecutor put the case in his opening address as follows: "It's alleged by the Crown that the accused injected a lethal dose of insulin into his wife's left buttock which led to her death. If the Court accepts that the accused injected insulin into his wife, there is no doubt that it was with the intention to murder her, because she was not a diabetic, and there was no legitimate medical excuse for the accused, who was a medical general practitioner, to inject his wife with insulin."
The Crown Prosecutor made it clear in the course of his opening address that there was no direct evidence that the cause of death was hypoglycaemia as a result of an injection of insulin but that the Crown relied upon a body of circumstantial evidence to prove that this was so.
Senior Counsel for the applicant commenced his opening address by stating that "the central fact in issue in this case is the cause of death of the deceased". He explained: "The defence case takes issue with the Crown's allegation that an injection of insulin was the cause of death and, in fact, the defence case takes issue with the contention that insulin was involved in the death of the deceased at all. … Ultimately, there will be no evidence of a forensic or medical nature tending to confirm insulin overdose was the cause of death of the deceased or that insulin was involved as a contributing factor in the death of the deceased at all. At its highest, the evidence to be adduced from forensic and medical experts will merely leave open the possibility that insulin was involved."

[4]

Principles applying to a ground of appeal that a verdict of guilty is unreasonable or not supported by the evidence

Ground 1 invokes the first limb of s 6(1) of the Criminal Appeal Act: "The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or … "
The principles as to how an appellate court is to consider and determine such a ground, including in the case of an appeal from a judge-alone trial, include the following propositions: 1) This Court must make its own independent assessment of the evidence, both as to its sufficiency and its quality. [1] 2) It must be borne in mind that the tribunal of fact in the court below (often a jury but in this case a judge) had the primary responsibility of determining the question of guilt or innocence and had the benefit of seeing and hearing the evidence. [2] 3) If this Court is left in doubt as to the reasonableness of the verdict, having taken into account the matter in 2 above, the verdict should be set aside. [3] 4) A verdict will be unreasonable if it is concluded that the jury must have (should have) entertained a doubt about the appellant's guilt. It is not enough that the jury might have entertained a doubt or that it is possible the jury could have reached a different conclusion. [4] 5) A finding that there was evidence on which a jury could convict does not mean that the verdict was not unreasonable. [5] 6) Where the Crown relies on circumstantial evidence, the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion. [6] 7) A judge who tries criminal proceedings without a jury may make any finding (i.e. verdict) that a jury could have made on the question of the guilt of the accused and any such finding has the same effect as a verdict of a jury. [7] 8) A judge's finding of guilt is not to be disturbed under s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the evidence was all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. [8] 9) In the case of a judge-alone trial, the appellate court should have regard to the judgment of the trial judge which, by statutory mandate, must include the principles of law applied by the judge and the findings of fact on which the judge relied. [9]

[5]

The issue for determination by this Court

The prosecution case was an entirely circumstantial one and it had eight elements. The defence response was either to dispute them or to argue that they were of no significance. In this Court, however, the issue for determination was much more narrowly confined. It was accepted that it was open to the judge to find that the applicant had acquired and administered insulin to the deceased. The sole issue was that in a case where a particular cause of death is alleged (as here), unless there is direct evidence establishing such a cause of death the Crown will have failed to prove that an act of the accused caused the death of the deceased. The argument was expressed in the written submissions (at [177]) as follows: "Assume against the Applicant that it has been proved he obtained a supply of insulin … and surreptitiously injected the deceased with insulin intending to kill her. Unless it be proved beyond reasonable doubt the action of the insulin caused death by severe hypoglycaemia the Applicant would not be guilty of murder - this is because the act of the Applicant did not cause the death of the deceased. The act of the Applicant and the means chosen by him to effect death are not always inextricably connected. There may be a case to answer for attempted murder but not murder in the absence of evidence beyond reasonable doubt that it was insulin that caused severe hypoglycaemia extinguishing the life of the deceased."
The applicant's contention was perhaps expressed more clearly in oral argument; for example: [Reference was made to other cases where the cause of death could not be determined before counsel continued:] "Here [there] was a positive forensic decision made by the Crown to run the case on the basis that the deceased died of insulin poisoning, and at the end of the case the evidence did not support such a proposition." "[O]ne can't lose sight of how criminal responsibility arises in that situation that the act of the accused caused the death of the deceased. In this case, the act of the accused first and foremost was insulin poisoning and if you can't prove that, then you hit a brick wall at the point of the question, did the act of the accused cause the death of the deceased? Even if you have a significant body of circumstantial evidence which might suggest that he did certain things to bring that about but if that didn't happen, then you haven't proved the act of the accused caused the death of the deceased." "The circumstantial evidence hits a brick wall in a case where you rely on the cause of death being a particular event. You can't elevate the circumstantial evidence in such a way that you're left with effectively speculation. If you cannot prove beyond reasonable doubt what the cause of death is in a case where you run the case on a positive assertion that the cause of death is a particular event, then you have not proved that the cause of death is that particular event."
It was common ground at the trial that in addition to the elements of the offence of murder that the Crown was required to prove beyond reasonable doubt, there was a further indispensable fact that required proof to that standard: Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56. That was that the applicant had on the afternoon of 31 December 2009 improperly obtained a supply of insulin. The applicant accepted in this Court that the trial judge was entitled to be satisfied of this fact beyond reasonable doubt. He also accepted that there was evidence from which the judge could draw the inference that he injected his wife with insulin. As a result, the sole matter in issue in this Court was whether it was open to the judge to be satisfied beyond reasonable doubt that it was the injection of insulin that caused death.
It will be necessary to determine this limited (but obviously fundamental) issue by looking at the nature and strength of the Crown's circumstantial case. Given a contention in the applicant's submissions that there was evidence suggesting a lesser or no likelihood of death resulting from an insulin overdose, it will be necessary also to examine that aspect of the medical evidence.

[9]

Issuing of the Kristina Mitchell prescription

This circumstance is the indispensable fact that the Crown was required to prove beyond reasonable doubt (see above at [15]).
Ms Kristina Mitchell had been one of the applicant's patients for about five years. She suffered from diabetes and used two different types of insulin: the fast-acting NovoRapid FlexPen which she took during the day and the slow-acting Lantus SoloStar which she took at night.
Ms Mitchell attended the CMDC on 31 December 2009 and saw the applicant at 3.12pm. She was given prescriptions for Lantus SoloStar and three other medications. She had them filled at the Priceline pharmacy at Macarthur Square shopping centre later that afternoon. She identified her signature on the prescriptions in the "Patient's or agent's signature" field (Exhibit U).
Ms Mitchell was shown a prescription in her name also dated 31 December 2009 for NovoRapid FlexPen which other evidence established had been issued by the applicant at 5.01pm and filled at the CMDC pharmacy that evening (Exhibit V). She denied that she had signed it. It was accepted that the applicant had. Nevertheless, it was contended that there was a reasonable possibility that the prescription had been "accidentally signed and it might nonetheless have been filled and the medication provided to Mrs Mitchell".
The trial judge concluded (at [219] and [346]): "[T]he only rational conclusion in relation to the prescription (Exhibit V) is that the accused printed it, signed it as doctor and then some time later, presented it to the CMDC pharmacy, it being also signed by him as agent of the patient. It could only have been for a reason other than legitimately providing NovoRapid to Mrs Mitchell or any other patient. I have concluded that his reason for writing the prescription and presenting it to the pharmacy had no legitimate basis in his practice as a medical practitioner. I find that the accused acquired the NovoRapid insulin for the purpose of administering it to the deceased. … [T]he issue of whether the accused improperly obtained a supply of insulin on 31 December 2009 by means of the Kristina Mitchell NovoRapid prescription was fundamental to the Crown case. For the reasons given, I am satisfied that the Crown has established beyond reasonable doubt that the accused did obtain a supply of insulin in that way."

[17]

Positional asphyxiation

"Positional asphyxiation" was described by Dr Irvine as "an inability to breathe effectively, based on the position of the body itself" such as where a severely intoxicated person falls and ends up in a position where their head is tucked in tightly to their chest and their head is underneath them.
The body of the deceased was found by police to be lying beside the bed with the head facing down but wedged so that the right cheek was pressed against the side of the bedside chest of drawers. In her report, Dr Irvine described it as an "unusual" and "awkward position" but she did not think there appeared to be a component of positional asphyxia. In her oral evidence she said, "It's unlikely that this represents a positional asphyxia". In her evidence at the inquest she described it as "very unlikely". At the conclusion of her evidence, after being cross-examined about the possible influence of a concussion or the sedative effect of drugs that were found in the deceased's system, Dr Irvine maintained that positional asphyxiation was "very unlikely" but "possible".
Professor Duflou said in his report that it would "be possible, but in my view relatively unlikely for a person to have suffered positional asphyxia in that position". He immediately proceeded to write about a number of possibilities that could qualify this view. In his oral evidence he agreed that when there is positional asphyxia, petechiae in the eyes is commonly seen but they were not in this case. He agreed that petechial haemorrhages over the surface of the lungs and the heart may be seen but they were not in this case. He ultimately agreed positional asphyxiation, whilst possible, was "not the obvious cause of death that I would consider at the time".
Professor Olaf Drummer, a Victorian forensic pharmacologist and toxicologist (see below at [55]), said that he would not expect that the drugs in the deceased's system could potentially cause her to become so incapacitated that she would be unable to move her head in order to breathe.
Professor Dimitri Gerostamoulos, Chief Toxicologist and Manager - Toxicology, Victorian Institute of Forensic Medicine, provided a report of 12 May 2011 (Exhibit AR) which was solely directed to the effect of lorazepam (trade name Ativan) being found within the deceased's system. The toxicological test results indicated to him that a low dose had been administered or taken. He was unable to say anything about the relative pharmacological effect in terms of whether the deceased would have been able to move her head in order to breathe. There were unknown factors such as when the drug was consumed and how much. It was a sedative drug which would have an additive effect with other sedative drugs. Alcohol may also tend to increase the effects of a combination of the medications detected.
Professor Duflou was recalled for further cross-examination at the end of the trial. He was shown some photographs of the deceased's body and from the colouring of the face he said positional asphyxia was "still very much worth considering as a reasonable possibility". He was referred to one particular photograph and he said: "I must say that the body looks more - in a more confined position than I had recalled and in a situation like that, you know, it certainly, I think, reinforces my concern that this could be a death due to positional asphyxia or a wedging type death of that type."
The Crown Prosecutor was granted leave to question the doctor pursuant to s 38 of the Evidence Act 1995 (NSW). Professor Duflou agreed that it was very likely that the photographs he had been shown were ones he had seen before he wrote in his report that positional asphyxiation was "relatively unlikely". He was reminded of the evidence he had given six days earlier ("not the obvious cause of death that I would consider at the time") and said he was still of that view, adding "positional asphyxia would be lower down the list".
The trial judge said he had some reservations about the evidence of Professor Duflou given on the second occasion he was called. He had changed his position in two respects from that set out in his report and in his earlier evidence. The change was apparently triggered by being shown some photographs - but they were photographs that he had seen previously. For this reason and in respect of this issue the judge preferred the evidence of Dr Irvine. This included acceptance of Dr Irvine's analysis of the photographs that the deceased was not in a position in which her capacity to breathe had been seriously compromised. The judge concluded that positional asphyxiation was "a very unlikely cause of death but remained a possible cause".
That analysis by the trial judge was confined to the evidence that directly related to the issue at hand. When later in his judgment he announced the findings that he made when having regard to the circumstances as a whole (rather than individually) he said that he was satisfied beyond reasonable doubt that positional asphyxiation was not a possible cause of death. Counsel for the applicant expressly conceded at the hearing in this Court that his Honour was entitled to come to that view.

[19]

Professor Drummer

Professor Olaf Drummer was asked to review the autopsy and toxicological test results within the realm of his expertise. He provided a report dated 21 March 2011 (Exhibit AQ).
Professor Drummer was not troubled by any of the medications found within the deceased's system as they were within therapeutic levels. (In his oral evidence this opinion extended to another medication, lorazepam.) He said that a number of drugs are available to general medical practitioners that have the potential to be fatal and would cause rapid unconsciousness and death within a few hours. They included morphine and perhaps some opiates, muscle relaxants and insulin. He noted that morphine and muscle relaxants had been excluded but he said it would be useful for there to be testing for some of the potent opioids. He also noted that insulin testing was requested but analysis was not possible at the New South Wales Division of Analytical Laboratories.
Professor Drummer said that insulin when given in excess (particularly to a non-diabetic) can "rapidly" cause low to pathologically low glucose concentrations leading to coma and death. Insulin could be readily measured in serum and the demonstration of insulin in tissue around an injection site often confirms the diagnosis (of an overdose).
When asked to clarify his opinion concerning an overdose of insulin and the use of the word "rapidly", he spoke of a number of variables. He said that if a fast-acting insulin such as NovoRapid was given at a certain dosage level intramuscularly in the buttocks to a person who was not a diabetic, a coma could result within an hour. He agreed in cross-examination that intramuscular injection takes less time for the insulin to take effect compared to subcutaneous injection.
Professor Drummer said that when a person has been dead for a day or two it makes it very difficult for any laboratory to detect insulin using standard procedures, as distinct from measuring insulin levels during life.

[20]

Professor Carter

Professor John Carter is the Clinical Professor of Medicine at the University of Sydney and is a specialist endocrinologist and diabetologist. He provided a report dated 12 December 2014 (Exhibit AS).
Professor Carter's report provided information as to what insulin is and its function in the human body. He described the condition of hypoglycaemia and its effects.
Short (or fast) acting insulin analogues such as NovoRapid commence to take effect following subcutaneous injection after 10-30 minutes and remain active for 3 to 5 hours, with peak activity at 30 minutes to 3 hours. Intramuscular injection provides for quicker absorption. The speed of absorption varies individually because of factors such as being overweight or obese. (The deceased had a BMI of 37.4 kg/sq m, well above the threshold for obesity.)
Professor Carter explained that an overdose of insulin on its own will not directly cause damage but the resultant low blood glucose levels may do so. He wrote: "Once the blood glucose level drops below normal, there are frequently features caused by the secretion of hormones such as adrenalin which leads to an increased pulse rate, sweats, tremor, hunger and a feeling of vagueness. As the glucose level continues to fall, the cerebral state reduces and the person can become confused and disorientated and then lose consciousness. On occasions, the glucose level can fall so quickly that the effects of lack of glucose in the brain predominate and confusion and coma develop rapidly. The lower the glucose level and the longer hypoglycaemia is present, the greater the chances of brain damage (reversible or irreversible) and subsequently death developing."
Professor Carter concluded his report with the opinion that "it is possible given all the circumstances of the matter that Christine Crickitt could have died from an overdose of insulin". When asked about this at the trial he said, "I cannot say one way or the other".
In his oral evidence, Professor Carter opined that insulin could be detected in blood taken even three days after death, although he also said that the prospects of correlating the finding with insulin levels at the time of death diminished over that period (within 24 hours very good; 24 to 48 hours not as good; 3 days, if a very low level is detected, would provide no help on the level at the time of death).

[21]

Professor Marks

Emeritus Professor Vincent Marks, University of Surrey, Guildford, provided a report dated 29 November 2011 (Exhibit BD). He is a world-renowned expert in relation to insulin and glucose metabolism in relation to diabetes and hypoglycaemia.
Professor Marks concluded: "Despite the suspicious circumstances of her death there is, however, no laboratory or clinical evidence to support a diagnosis of death from hypoglycaemia due to insulin. Equally there is no evidence that excludes this possibility."
In the body of his report he said that while it cannot be excluded that there was an administration of insulin there was also "nothing to suggest that insulin was involved and some minimal evidence to suggest that it was not". He explained in a telephone conference, subsequently confirmed in writing by email (Exhibit BF), that the "minimal evidence" he was referring to was an account emanating from the applicant to the effect that the deceased had taken less than 6 hours to die. He said he would have expected her to stay alive for longer than that period of time after an injection of insulin.
As a post-script to his report he wrote: "Since this report was written a copy of a report by Professor Mario Thevis has come into my possession. He was unable using his highly sophisticated and exquisitively [sic] sensitive method for measuring insulin and its synthetic analogues to detect any of them in the haemolysed samples of blood that had been collected post-mortem but not separated into serum and cellular elements. They were apparently placed un-separated directly into the deep freeze. I agree with Professor Thevis's conclusion that his failure to find any insulin or its analogues in either of the two blood samples that he received does not conclusively establish that Mrs Crickitt was not given any of them by injection on the night/morning of her death. It must however reduce the likelihood. Had he been able to detect any insulin, especially if it had been a synthetic analogue, the situation would have been entirely different and been strong presumptive evidence of its malicious administration. Professor Thevis's findings therefore do not influence the conclusion expressed in my report that whilst insulin administration leading to fatal hypoglycaemia cannot be excluded beyond any doubt there is no evidence that it was involved in her death and is, on clinical grounds, less likely than that it was involved."
In his email exchange (Exhibit BF), Professor Marks said that by the final paragraph of that extract he was again referring to his understanding of the timeframe of death of the deceased and nothing more. He was asked whether now that he had been provided with additional information about the timeframe surrounding the death (the applicant came home around 8.00pm and the body was found 12 hours later), he was no longer of the view that it was less likely that insulin was involved. He said: "I feel that I have no view whether insulin was involved or not. There is no evidence to support the suggestion that it was given; there is nothing to disprove that it was given."

[23]

The judge's reasoning as to insulin causing death

The judge dealt with as a discrete topic the issue as to insulin administration being the cause of death. He quoted at length from the evidence of Professor Drummer, Professor Carter and Professor Marks. He referred to the Crown's submission that on the state of the evidence the position was "implacably neutral" that insulin administration leading to fatal hypoglycaemia could not be excluded but there was no evidence on clinical grounds that it was involved.
As to the defence case, his Honour noted a submission that no physical evidence was found to support the Crown case (no syringes or used Flex Pens were found on searching the applicant's house and bins). He recorded in considerable detail a submission that the timing of events was inconsistent with the Crown case; for example, that the evidence supported the proposition that any hypoglycaemic coma would be unlikely until the late hours of the night of 31 December 2009 and that having regard to observations of the state of the deceased's body the next day (rigor mortis, lividity) it was inconsistent with the evidence of Professor Marks and therefore unlikely that death from hypoglycaemia could have occurred so rapidly. His Honour also referred to Professor Duflou having said in a 2011 report for the coronial inquest and in his evidence that estimates of a time of death were "almost impossible" when there has not been a knowledgeable person present at the time death occurred.
The judge concluded that the defence submission on this issue of the timing being inconsistent with death having been caused by insulin administration was "of limited force". There was no evidence of the amount of insulin that had been injected, if that had occurred, and the amount was "of considerable importance". There was on the evidence an enormous variation in the reaction of individuals to insulin and so the experts (Professors Marks and Carter) were very careful to express their opinions in terms of generality and even then with high qualification.
The judge summarised: "[105] I have concluded that the defence submissions on this issue involve a significant amount of speculation and go no further than raising possibilities. There is an absence of accurate evidence which would allow proper inferences to be drawn. That having been said, the Crown case on this issue rises no higher than the conclusion of Professor Marks that while insulin administration leading to a fatal hypoglycaemia cannot be excluded, there is no clinical evidence that it was involved in the deceased's death."
It followed that the judge was required to determine whether the Crown had proved beyond reasonable doubt that the death of the deceased had been caused by the applicant having administered insulin solely on the basis of inference. He encapsulated his satisfaction to that standard in the following: "Conclusion [345] In my analysis of the evidence I have assessed each circumstance relied on by the Crown and set out my conclusions. Of necessity, in relation to some of these circumstances, I was obliged to consider them in isolation. I now propose to re-visit those issues having regard to the whole of the Crown's circumstantial case. [346] As I have already made clear, the issue of whether the accused improperly obtained a supply of insulin on 31 December 2009 by means of the Kristina Mitchell NovoRapid prescription was fundamental to the Crown case. For the reasons given, I am satisfied that the Crown has established beyond reasonable doubt that the accused did obtain a supply of insulin in that way. That finding has important implications for other circumstantial evidence adduced in the trial. [347] When considering whether insulin was a cause of the deceased's death, I concluded that there was no clinical evidence to that effect. That remains the effect of the medical evidence. I am now, however, satisfied beyond reasonable doubt that the deceased's death was caused by an overdose of insulin. This is largely because of my finding in respect of the acquisition of a supply of insulin by the accused on 31 December 2009. [348] When considering the "purported injection site" I concluded that the photographs of the deceased's left buttock raised the possibility of there being an injection site at that location. I am now satisfied on the whole of the evidence that photographs (Exhibits S and AL) do show an injection site and that this was where the insulin was administered by the accused. In reaching that conclusion I acknowledge that there remains a gap in the Crown case as to exactly how the insulin was administered. For the reasons already given, I have concluded that it was more likely that a subterfuge was used by the accused in order to gain the deceased's acquiescence to him administering an injection. [349] When considering the likelihood of postural asphyxiation as a cause of death, I concluded that it was very unlikely but possible. On the whole of the evidence I am now satisfied beyond reasonable doubt that positional asphyxiation was not a cause of the deceased's death. [350] Accordingly, I make the following findings beyond reasonable doubt. 1) That the accused improperly obtained a supply of insulin on 31 December 2009 otherwise than in the normal course of his work as a medical practitioner by means of the Kristina Mitchell NovoRapid prescription. 2) That on 31 December 2009 the accused administered a quantity of insulin by way of injection to the deceased. 3) That the administration of the insulin to the deceased was a deliberate act on the part of the accused and that this act caused the death of the deceased. 4) That the injection of insulin to the deceased by the accused was done with an intention to cause her death. [351] It follows that I am satisfied beyond reasonable doubt that the Crown has proved that the accused committed the offence on the indictment and I find the accused guilty of the murder of Christine Crickitt."
This process of reasoning was well open to the trial judge. Having regard to the findings of fact, particularly those listed in [350], it was not fatal to the prosecution that there was no direct evidence that death occurred as a result of the administration of insulin. The applicant did not refer to any authority that mandated there should have been direct evidence. In this case it was well open to the trial judge to infer from the facts that he found that the applicant deliberately and intentionally caused the death of the deceased by administering insulin to her.
There will be a grant of leave to appeal but Ground 1 must be rejected.

[24]

Ground 2 - failure to warn or direct as to the applicant's loss of forensic opportunity

Section 133 of the Criminal Procedure Act provides: "133 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
It was therefore necessary for the judge to include in his judgment the principles of law that he applied. It was also necessary for him to take into account any warning that would normally be given to a jury.
After closing addresses had concluded there was an exchange between bench and bar as to the directions the judge should give to himself in the course of which senior counsel for the applicant said: "Your Honour might consider a direction concerning the absence of evidence in relation to the testing of insulin in the blood taken from the deceased. Your Honour has heard evidence that serum was obtained from the blood of the deceased, retained for a period of time and then properly destroyed in accordance with the order of the coroner. … The situation is analogous in some respects to where there is an absence of evidence from a material witness in the trial. Now, that's not a matter as a result of which any inference is to be drawn one way or another, it is a matter to be taken into account in determining whether or not the Court is satisfied beyond a reasonable doubt. We say that reasoning is applicable to the absence of evidence capable of proving the Crown's case in the circumstances of this trial".
Reference was made by senior counsel for the applicant to Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 in support of his submission.
The trial judge said: "HIS HONOUR: I'll think about that, Mr Gartelmann, and if it's appropriate, I'll give myself a direction. At the moment, I'm rather equivocal about that."
The Crown Prosecutor opposed the giving of the direction, characterising the issue as simply "a gap in the Crown case" and agreeing with his Honour's suggestion that it was "a fact [the Crown] have got to live with".
The judge concluded: "Anyway, I'll look at Mahood [sic] again and make up my mind."
The judge did not refer to the issue, in terms of giving himself a direction, in the course of his lengthy reasons.
In the applicant's written submissions in this Court it was asserted that the applicant had lost a forensic opportunity because of the inadequate forensic testing of the deceased's blood for the presence of insulin. In the context of the Crown case being that the applicant had killed his wife by an overdose of insulin the judge should have warned himself that "such a finding may be unreliable" for two reasons; first, because the state of medical evidence was equivocal ("speculative") as to the involvement of insulin in the death; and secondly, because the lost forensic opportunity went directly to the question whether insulin administration caused the death.
Nothing more was said about Mahmood v The State of Western Australia in written or oral submissions. That may have been because reliance upon it at trial was inapt; it was concerned (in ground two - see the plurality at [20]-[29]) with whether an inference on a specific topic could be drawn where there was an absence of direct evidence and there were competing hypotheses inconsistent with the hypothesis for which the prosecution contended. The present was a purely circumstantial evidence case with a core element of there being an absence of direct evidence that the deceased did or did not die as a result of the administration of insulin.
Contrary to the submission of senior counsel for the applicant at trial, this was not a case in which there was an "absence of evidence capable of proving the Crown's case". Contrary to the applicant's written submissions, it was not the case that a finding that insulin administration caused the death of the deceased "may be unreliable" because it was not capable of proof by direct evidence. The issue for the trial judge was whether the elements of the Crown's circumstantial case were capable of proving the offence beyond reasonable doubt. There was no occasion for the judge to give himself a "warning".
Ground 2 must be rejected.

At a glance

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Judgment (26 paragraphs)

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Legislation Cited (3)

Cases Cited (19)

Cited By (10)