R v Crickitt

Judgment

HIS HONOUR: Brian Kenneth Crickitt (the accused) was arraigned before me on 14 October 2016 and pleaded not guilty to the following count in the indictment: That on or about 1 January 2010 at Woodbine in the State of New South Wales he did murder Christine Crickitt.
The trial was conducted without a jury. The accused applied for an order that he be tried by judge alone. The Crown consented to the application (s 132(2) of the Criminal Procedure Act 1986 (NSW)). The trial commenced on 26 October 2016 and concluded on 10 November 2016. Crown case
The Crown case was that the accused deliberately injected insulin into the left buttock of the deceased [his wife] on the night of 31 December 2009 or in the early morning of 1 January 2010. The Crown submitted that if the Court accepted that fundamental proposition, there could be no doubt that this was done with the intention to murder the deceased because she was not a diabetic and there was no legitimate medical reason for the accused to inject her with insulin.
The accused at the relevant time was a general practitioner at a multiple doctor practice at Campbelltown known as the "Campbelltown Medical and Dental Centre" (CMDC). For many years he had been the main medical practitioner treating the deceased and had prescribed for her numerous medications for a wide variety of medical complaints. These included a thyroid condition called "Grave's Disease", glaucoma, arthritis, a possible bi-polar condition, depression, asthma, blood pressure and insomnia.
The Crown accepted that it was unable to say on its case how the accused was able to inject insulin into the buttock of the deceased on the night of her death. The Crown raised two possibilities - that he lied to the deceased about some medication that he offered to her by way of a syringe administered to the buttock so that she agreed to that procedure, or that he forcibly administered the syringe to her buttock and injected her against her will.
The accused and the deceased had been in a relationship for 21 years and had been married for about 19 years. Both had left previous marriages in order to be together. Both had children from their previous marriages, but no children from this marriage. The deceased had three adult children and the accused one.
For some years before the deceased's death, they lived together at Clontarf Close, Woodbine (near Campbelltown). It was the Crown case that for some time before her death, the marriage was in difficulty and the accused was unhappy in the marriage. The deceased would on occasions be very abusive to the accused, particularly if she had had too much to drink. Despite this deterioration in the relationship, they remained together.
In his interviews with police, the accused said that things had been difficult between him and the deceased, that he had been very unhappy in his marriage and that he was undecided whether to stay or go. He said that he had frequently wanted to leave and that he had previously left for a couple of days. It was the Crown case that for months before her death, the deceased had become convinced that the accused was no longer intending to stay in their marriage and that he was having an affair. He began staying out at night, purportedly at work, and there were some nights when he did not come home at all. There had been periods of several days when the deceased had been unable to contact the accused.
When questioned by the deceased, the accused denied having any outside romantic interests and insisted that he was committed to the marriage. The reality was that the accused was in a relationship with Ms Linda Livermore. Some weeks before the deceased's death the relationship between the accused and Ms Livermore had become a sexual one and he was spending more and more time with her at her home. Shortly before the death of the deceased, the accused had raised with Ms Livermore the possibility of them getting married and she had responded positively to this suggestion.
The Crown accepted that on some occasions the deceased had indicated that if the accused left the marriage she would commit suicide. It was the Crown case that this was an idle threat and that at no stage did she have any serious intention of doing so. The Crown noted that not long before her death, the deceased had made plans to visit and spend time with members of her family. She was said to be looking forward to these activities.
The Crown submitted that at the time of the deceased's death, the accused and Ms Livermore were planning their future lives together. The accused and the deceased had some property in common and were both involved in several family companies which held investments. The deceased had a life insurance policy, with the accused as a beneficiary, in the amount of about $568,000. On the Crown case the accused was motivated to murder the deceased so that he could be with Ms Livermore and gain the financial benefits referred to. It was the Crown case that the accused resented the deceased's dismissive and caustic treatment of him and wished to terminate the marriage so that he could commence a marriage with Ms Livermore.
The Crown submitted that the death of the deceased was planned by the accused. The Crown submitted that at about 1.30am on Wednesday, 30 December 2009, i.e. approximately 48 hours before the deceased's death, the accused did a Google search on his home computer directed to symptoms of an insulin overdose. He went to a website known as "diabetes.emedtv.com". That website described the symptoms of an insulin overdose as a result of the injection of the rapid action type of insulin. At about 8.30pm on the same day, the accused did a search of the same website and brought up the web page of an organisation known as "Critical Care". This web page contained a lengthy article devoted to the topic "intentional overdose with insulin". It contained an academic analysis of 25 patients who had intentionally overdosed or been overdosed with insulin and who had been admitted to a hospital in Paris. The article discussed the amounts of insulin that each had been injected with, the amount of time that had elapsed before each received medical treatment and the outcome for each patient which ranged from a complete recovery to death.
It was the Crown case that rapid acting insulin caused a dramatic drop in blood glucose levels which in turn caused sweating, dizziness, shakiness, blurred vision, irritability, loss of co-ordination, difficulty speaking, confusion and after some time, seizures, loss of consciousness, coma and could cause death. The rapidity of symptoms including death depended on a number of factors including the size, age and general health of the patient, the amount of insulin injected and the interaction of insulin with any drugs taken by the patient, including interaction with alcohol. The effect was not instantaneous but some effects would become apparent within 15 to 20 minutes. Death, if it eventuated, would take a number of hours. During that time the patient would be extremely confused, unco-ordinated and unable to function including being unable to get help for themselves.
It was the Crown case that the accused was rostered to work at the CMDC on 31 December 2009 from 10am to 8pm. At 3.12pm he saw a patient named Kristina Mitchell who was a diabetic. Mrs Mitchell saw the accused in order to pick up a number of prescriptions for a variety of conditions. Mrs Mitchell used both the slow acting and fast acting varieties of insulin. The slow acting variety is known as "Lantus SoloSTAR". The fast acting variety is known as "NovoRapid".
One the of the drugs that was prescribed for Mrs Mitchell by the accused when she attended on that day was Lantus SoloSTAR. It was the Crown case that Mrs Mitchell had previously been given a prescription for NovoRapid by a specialist endocrinologist, Dr Borkman, which she had filled on 25 November so that in late December 2009 she still had a plentiful supply of it. The prescription for NovoRapid provided by Dr Borkman would normally last between four and five months.
The CMDC had a computer system known as "MedTech32". All prescriptions and medical notes were recorded on this system. Each doctor in the CMDC had a unique username and password and there was an office policy that usernames and passwords were not to be shared. The accused's username was "BRC" (his initials).
Two prescriptions were made out by the accused for Mrs Mitchell, including one for the slow acting insulin, Lantus SoloSTAR. Those prescriptions were entered onto the MedTech32 system. After leaving the CMDC Mrs Mitchell attended the Priceline Pharmacy at Macarthur Square at 3.36pm and had those prescriptions filled. This included the prescription for the slow acting insulin. Mrs Mitchell signed with her usual signature for the two prescriptions that she presented.
It was the Crown case that at about 5pm, approximately an hour and three quarters after the accused had seen Mrs Mitchell, he accessed the CMDC MedTech32 system using his username and added a prescription to the records for Mrs Mitchell for the fast acting insulin, NovoRapid FlexPen. NovoRapid FlexPen comprised a disposable syringe with a fast acting solution of insulin for injection. The insulin came in a box of five pens and the prescription was for five boxes, i.e. a total of 25 pens. Each pen contained 300 units of insulin. Up to 60 units could be dispensed at any one time by utilising the mechanism in the pen.
It was the Crown case that the accused entered this prescription in the MedTech32 system, printed the prescription and then immediately deactivated it. This had the effect of removing the prescription from the records of Mrs Mitchell at the CMDC. The MedTech32 program recorded the removal of a prescription but required the doctor removing it to insert a reason for the deactivation. The Crown submitted that in this case the accused typed in the word "wrong" as the reason. One minute later he reactivated the prescription and then immediately deactivated it again. On this occasion he changed the reason for the deactivation from "wrong" to "not needed".
The Crown case was that the accused's only reason for printing this prescription for the fast acting variety of insulin in the name of Mrs Mitchell was so that he could obtain a large amount of insulin with which to inject the deceased with a fatal dose in a way that he thought would not be able to be detected.
It was the Crown case that NovoRapid was a very quick acting insulin which started working within five to fifteen minutes after injection. It had a peak effect at somewhere between 45 and 75 minutes and a duration of action of two to four hours. The Crown case was that the accused's reason for deactivating the prescription was to hide the fact that he had issued a prescription for the fast acting variety of insulin that afternoon because he knew that he was going to use that insulin to murder his wife later that night.
The Crown case was that having printed the prescription for the fast acting variety of insulin at approximately 5pm, the accused presented that prescription between 6pm and 7pm at the CMDC pharmacy. The pharmacist on duty did not recall who she dispensed the prescription to but said it was not uncommon for doctors to present prescriptions, either for themselves, family members or for patients. The accused regularly attended the pharmacy for the purpose of obtaining medication for the deceased.
When a prescription for this medication was filled, the patient or agent was required to sign it. The Crown case was that not only did the accused sign the prescription as the treating doctor but he also signed it as the agent of the patient when the prescription was filled. It was the Crown case that having prepared this false prescription for the fast acting insulin in the name of Mrs Mitchell and having filled it at the CMDC pharmacy, the accused took the insulin home with him that night and used it to murder the deceased.
It was the Crown's case that what happened at their home in Clontarf Close, Woodbine that night was substantially dependent upon two accounts provided by the accused to police in two interviews which took place on 1 January 2010.
A download of the deceased's telephone records revealed that in the weeks before her death, she had been regularly texting the accused while he was at work and repeatedly asking him where he was, when he would be home, whether she could see him during the day and instructing him as to what medications and other things she wanted him to bring home. On the evening of 31 December 2009 the pattern of texts between them was no different.
At 5.20pm the deceased texted the accused and asked how it was going and whether he would be able to come home early. The accused texted back at 5.47pm: "On track so far for a timely lift off". At 6.14pm the deceased texted the accused "What time is early? Shall I put the steaks on now?". The accused texted back that he planned to leave at 7 to 7.30pm. At 7.28pm the deceased texted the accused and said "Are you coming early". The accused texted back at 7.36pm to say that he was waiting for the last patient to come and was then leaving. It was common ground that the accused had taken time off that afternoon to meet Ms Livermore.
In his first interview with the police on 1 January 2010 the accused said that he arrived home after leaving work at about 8pm. He and the deceased had dinner and watched a movie. The accused said that the deceased appeared to have been drinking and that her speech was a little slurred. At about 10.30pm they went to bed and commenced arguing about their relationship. He said that the deceased again accused him of having an affair which he denied. They continued arguing for an hour or so and then he dozed off in their bed.
The accused said that he woke at about 1am, made a cup of tea and that the deceased started arguing with him again, getting angry and shouting at him. She kept saying "You can't leave me, you've got to promise me you'll stay here." The accused said that he told the deceased "I'm not planning on going anywhere." When the deceased accused him of having an affair, he responded "No. You know, I am here. I don't have anyone else. I'm at work because I have to be at work. You know, I have so many hours."
In the first interview, which commenced at 9.53am, the accused said that after this argument with the deceased, he left the house at about 2am intending that he would be gone for a couple of hours and thinking to himself "Why should I stay there?" He put a few items of clothing in a bag in case he did not come back that night. He told police that he thought "I might want to stay out for a day or something, but I didn't. I came back, you know." When asked where he had gone when he left the house at 2am, the accused said that he had driven into Campbelltown, stopped his car next to a park where he parked, thought and slept for a little while. The accused said that he had gone for a drive to Narellan, the Camden Bypass, Razorback and Picton.
It was the Crown case that the accused telephoned Ms Livermore from his home before 2am and drove straight to her home which was at Leumeah. He spent the rest of the night with her.
In his first interview, the accused told the police that when he left home, the deceased was still in their bed. He said that when he returned home at about 8.15am, the house was quiet, except for the cat, which he fed. He said that he looked into their bedroom, but could not see the deceased in bed, so he thought that she must be up and about somewhere. It was only later when he looked properly into the bedroom, that he saw her lying on the floor. The accused said that he "sort of touched her and shook her a bit. She was cold. I just sort of shook her a bit more but, no, she was dead". It was then that he rang the police.
The Crown case was that having arrived at his home at about 8.15am, the accused made three phone calls to Ms Livermore and then she called him back from her home phone at 8.32am. It was only after those four phone calls that the accused at 8.44am first called triple-0 to report that his wife was dead.
It was not until the accused's second police interview, which commenced at 9.48pm that he admitted that he had lied to them in his first interview and that he had gone to Ms Livermore's home. The Crown case was that the accused's motivation for making these admissions was that he knew the police had interviewed Ms Livermore and that she had told them that he had been to her place that night and that they were in a sexual relationship.
The accused told police in the second interview that he had been in a sexual relationship with Ms Livermore for some weeks, that he had spoken with Ms Livermore about leaving his wife and that they had talked about being together in the future.
The accused told police that Ms Livermore had said that he could stay at her place for a few days until he found somewhere to live. He told police that his idea was: "I could get somewhere, sort out Chris, divorce her and we could hopefully get together in whatever relationship (being him and Ms Livermore"). The accused said "I would be very happy to be honest". He said that when he left his home he took a suitcase with a change of clothes to Ms Livermore's place and that he had spent the rest of the night at her home. He said that on the afternoon of 31 December, he had met Ms Livermore at the Campbelltown Mall and made an arrangement to go to her house at some stage that night. He said that during the previous few weeks, he had spent most nights at her place. He said that there were romantic feelings between them. He said that he had rung Ms Livermore from his home at about 1.30am before going to her place the previous night.
The accused told police that he believed that his wife was unaware of the existence of Ms Livermore, even though she was continually accusing him of seeing someone else. He told police that for several months he had been depressed and had been taking an antidepressant drug.
The Crown case was that at some time during the night of 31 December 2009, the accused injected his wife in her left buttock with a lethal dose of insulin with the intention of murdering her. The Crown submitted that he remained at the home until she was either dead or in a comatose or semi-comatose state so that without medical intervention she would inevitably die and only then left his home at around 2am to spend the night with Ms Livermore.
The Crown submitted that it was more likely that the accused had decanted insulin from one or more of the NovoRapid FlexPens into another syringe. The Crown submitted that the accused knew when he arrived home at about 8.15am on 1 January that his wife was deceased and that he used the time between his arrival and ringing the police to ensure that there was nothing at his home that might make the police concerned about the deceased's death. The Crown submitted that the accused knew that it was likely that the police would attend and investigate the circumstances of the deceased's death. The Crown submitted that the accused deliberately did not move the deceased from the position in which he found her because he knew that she was dead and did not want to move the body in a way which might suggest that he had been involved in her death. The Crown case was that the delay of about 30 minutes before the accused rang the police was not due to him being ignorant of where the deceased was but because he knew that she was dead.
When the deceased's body was inspected by police, it was in an unusual position with her head wedged firmly between her side of the bed and the bedside table next to it. This was a very narrow space. It was the Crown case that the deceased's position was consistent with her having attempted to get up from the bed but affected by the very low glucose levels brought about by the insulin, she had collapsed and fallen between the bed and the bedside table.
The Crown relied upon the observations of police officers that there was no sign that the other side of the bed (i.e. the accused's side) had been slept in. The Crown also relied upon the observations of police that the carpet in the lounge-room appeared to have been recently vacuumed because the pile of the carpet was upright and no other part of the house showed signs of having been recently vacuumed.
After the first police interview, the accused was taken back to his home and was present while police searched it. During the course of the search, he identified an Apple Mac PC on a desk as his computer. Three days later on 4 January, the police seized the computer and it was the Crown case that it was on this computer that the accused had made the internet searches about insulin to which reference has been made.
The Crown submitted that in order for exogenous (i.e. from outside the body) insulin to be detected, the blood of the deceased must be extracted soon after death and then must be specially treated by having the serum separated from the plasma so that the serum can be tested. The Crown submitted that the accused was aware of this and deliberately chose New Years Eve to murder his wife knowing that it was highly unlikely that an autopsy would be conducted on the deceased on New Years Day. In fact the autopsy was not conducted until 2 January. The Crown submitted that by that time, any chance of insulin being detected in the blood of the deceased was lost.
It was common ground that the procedures for testing the deceased's blood for insulin were not followed. The blood was refrigerated in its whole condition rather than being separated into serum and plasma and as a result, no adequate testing could be done on the deceased's blood. When Dr Irvine, a forensic pathologist, conducted the autopsy on 2 January she was unable to ascertain the cause of death. The heart, lungs, circulatory system, brain and every organ in the deceased's body appeared to be normal.
Toxicology tests of the deceased were done which disclosed therapeutic levels of various drugs, including Ativan, the chemical name of which is Lorazepam. Lorazepam is a benzodiazepine often prescribed as a sleeping or sedative tablet. No alcohol was detected in the deceased.
Dr Irvine found a number of peri mortem injuries (i.e. injuries sustained close to the time of death). It was the Crown case that those peri mortem injuries were consistent with the forceful administration of an injection of insulin. These injuries were: three ovoid-shaped bruise marks on the back of the deceased's right arm, a mark on the back of her head, a bruise on the breast and two areas of bruising on the deceased's left buttock. In addition one of the deceased's acrylic fingernails was broken.
It was the Crown case that Dr Irvine did not conduct any further investigation into the bruises on the left buttock because at the time she did not appreciate the possibility that those bruises might have been caused by the administration of a syringe. It was the Crown case that some considerable time later in December 2010, a police officer brought post mortem photographs to her and pointed out that one of them showed a distinct small red mark near the centre of one of the bruises on the buttock. It was the Crown case that this mark indicated where and how insulin had been administered by the accused to the deceased.
The Crown relied upon a number of events which occurred after the deceased's death as indicating a consciousness of guilt on his part. The Crown relied on what it asserted was the accused's insistence that the deceased be cremated, even though that was against the wishes of her family.
The Crown relied upon a change which was made to the CMDC medical records of Mrs Mitchell on 24 November 2011. The background to this change was that the inquest into the death of the deceased commenced 16 May and continued to 19 May 2011. It resumed on 5 December and concluded on 8 December 2011. During the adjournment, police subpoenaed the medical records of Mrs Mitchell from the CMDC. The records were printed out by the CMDC on 13 October 2011 and did not contain the entry for NovoRapid prescribed by the accused for Mrs Mitchell on 31 December 2009. It was the Crown case that the accused learned of these inquiries and appreciated how suspicious it looked that the prescription for NovoRapid had been deactivated by him. On 24 November 2011 the accused logged into the CMDC MedTech32 system, using his login and password, gained access to the patient records for Mrs Mitchell and reactivated the 31 December 2009 prescription for NovoRapid.
It was the Crown case that the accused reactivated the prescription while the coronial inquest was continuing to try to avoid being caught out as having hidden the 31 December 2009 prescription for NovoRapid. It was the Crown case that this was evidence of consciousness of guilt.
The Crown relied upon a number of lawfully recorded conversations between the accused and his wife, Julie Crickitt, in October 2014 in which he was heard to say that the police had fabricated evidence against him, including tampering with the autopsy photos and fabricating entries on the computer records of the CMDC. It was the Crown case that this amounted to a deliberate lie to his wife (Julie Crickitt) and that these false assertions amounted to evidence of a consciousness of guilt on the accused's part. The defence case
The defence submitted that the central fact in issue was the cause of death of the deceased. The defence submitted that the Crown had failed to prove beyond reasonable doubt that an injection of insulin was the cause of the death of the deceased and had failed to prove that insulin was in any way involved in her death.
The defence submitted that a reasonable scenario consistent with the innocence of the accused was that the deceased died as a result of positional asphyxiation. The defence submitted that the Crown had failed to exclude that condition as a cause of the deceased's death.
In support of that proposition, the defence submitted that the effect of the evidence from a range of medical experts in various specialities was that there was no evidence to establish that an insulin overdose was the cause of the death of the deceased or that insulin was involved as a contributing factor in her death. The defence submitted that, taking the medical evidence at its highest, it went no further than to leave open the possibility that insulin was involved.
The defence submitted that financial gain was not a cogent or persuasive motive for the accused to take the extreme step of killing the deceased. It submitted that the financial benefits were modest, comprising as they did the insurance policy and the small amount of assets which the accused and the deceased shared.
The defence accepted that the accused was having an affair with Ms Livermore and that he had attended her home in the early hours of morning of the day of the death of the deceased. The defence case was that the circumstance that the accused was having an affair with Ms Livermore was not such as to place him under such pressure as to provide a compelling reason for him to kill the deceased. There was no apparent reason why he would simply not leave his wife so that they could separate and divorce. They had no children together and had both been previously married. They had both left their respective spouses before and there was simply no reason why the existence of the affair provided the accused with a motive to kill the deceased.
The defence submitted that the explanation for the lies initially told by the accused to the police was readily apparent and was clear from what the accused said during the second interview. In the particular circumstances in which he found himself he was embarrassed to tell strangers about the fact of the affair and that this provided a complete explanation for his conduct other than a consciousness of guilt. The defence submitted that apart from those obvious lies, there was nothing to suggest that what the accused told the police was anything but the truth as to his movements on the night that the deceased died.
The defence submitted that the text message exchanges between the accused and the deceased on the evening of 31 December 2009 were consistent with the account which the accused provided to police concerning those events. The defence noted that the tone of the texts on both sides was cordial and did not suggest any pre-existing or current ill feeling between them.
The defence submitted that the accused's account of his movements on returning to the marital home the following morning were reasonable and not consistent with a consciousness of guilt. On the contrary, putting out the rubbish and feeding the cat and otherwise performing domestic duties was inconsistent with him having murdered the deceased. The defence submitted that there was nothing in the accused's account to the police concerning the events following his return home on New Years Day which had been shown to be false.
The defence accepted that there was evidence that an internet search was conducted on a computer within the family home for information regarding an insulin overdose and an article regarding intentional overdose with insulin. The defence submitted that the Crown could not exclude the reasonable possibility that given the nature of his profession, the accused may have had some occasion to research the effect of insulin for innocent purposes. He had no reason to think about these events until well after the death of the deceased. The defence noted that there was no evidence of the context in which these documents were accessed by the accused.
By way of further response, the defence submitted that had the accused as the Crown asserted, sought to ensure that there was nothing suspicious that the police might find in his home he would have removed the search history from the browser on the computer or removed the computer altogether. The defence noted that it was not until 4 January 2010 that the police seized the computer.
The defence submitted that the absence of alcohol in the deceased's blood at the time of autopsy was not inconsistent with the accused's statements to the police. The effect of the medical evidence was that alcohol within the blood would have metabolised by the time the sample was taken at autopsy. The defence submitted that there was evidence from Mrs Cheryl Ball, a friend of both the deceased and the accused, that the deceased had in fact been drinking on New Years Eve.
The defence submitted that the issuing of a prescription of NovoRapid insulin to Mrs Mitchell at the CMDC on 31 December 2009 did not assist the Crown case. There was no issue that Mrs Mitchell attended the CMDC on that day. The defence noted that it was not in issue that the accused would attend the CMDC pharmacy from time to time to collect medication for himself and others including the deceased. The defence noted that sometimes patients including Mrs Mitchell would attend the very same pharmacy to collect medication for themselves. It was the defence case that while patients of the CMDC would normally obtain prescriptions from doctors during a consultation, on occasions patients would obtain a prescription by ringing the doctor, having the prescription left at reception and then collecting it and attending the CMDC pharmacy to have it filled.
The defence submitted that an examination of the prescriptions for fast acting insulin which Mrs Mitchell had filled in 2009/2010 made it clear that had she not filled the prescription for NovoRapid, made out in her name by the accused on 31 December 2009, she would not have had enough insulin to meet her needs as prescribed by Dr Borkman. The defence submitted this was strong evidence supporting the proposition that in some way unknown, Mrs Mitchell had filled out the prescription for NovoRapid on the evening of 31 December 2009.
In relation to the Crown's reliance upon the accused's use of the MedTech software during the coronial inquiry, the defence submitted that it was not in dispute that he used the MedTech software in relation to the prescription issued to Mrs Mitchell. It was not in dispute that in connection with that prescription, the MedTech software recorded that it had been activated and deactivated at times. It was the defence submission that it was not known why the NovoRapid prescription of 31 December 2009 had been activated on 24 November 2011. In that regard, the defence noted that there was evidence that deactivation and activation of a prescription could occur on the MedTech system unintentionally. It was the defence submission that the reason why that activity was recorded on the software is not known by the accused and that it was clear that other doctors who treated Mrs Mitchell had deactivated her prescriptions in the past for a reason not known to the accused. It was the defence case that the activation and deactivation of the prescription does not reflect any deliberate conduct on the part of the accused such as would reveal a consciousness of guilt. Directions
In order to prove the charge of murder, it is necessary for the Crown to establish beyond reasonable doubt that a deliberate act of the accused caused the death of the deceased and that such act was carried out with an intention to either kill or cause really serious bodily harm. The deliberate act which the Crown relies upon is the injection of insulin and the intention the Crown asserts is that the accused intended to cause death. The assertion that insulin was involved in the deceased's death needs to be proved beyond reasonable doubt.
It was agreed by the parties that there was a further indispensable fact which the Crown would have to prove beyond a reasonable doubt for the accused to be convicted. The indispensable fact was: "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." I find that this is an indispensable fact which the Crown had to prove beyond reasonable doubt for the accused to be convicted. Without proof of that fact there is little to connect insulin to the death of the deceased.
The Crown does not rely upon any direct evidence that establishes that the accused injected the deceased with insulin. Its case is purely circumstantial.
The High Court recently summarised the correct approach to be taken in circumstantial evidence cases in The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013: "46 The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen [1975] HCA 42 at 104; 133 CLR 82 at [104]; Gibbs, Stephen and Mason JJ said: "When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen." 47 For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal."
In Lane v R [2013] NSWCCA 317; 241 A Crim R 321 the Court of Criminal Appeal (Bathurst CJ, Simpson and Adamson JJ) spoke of the "very real" distinction between drawing an inference from proven facts and engaging in speculation". "109 In Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262, Spigelman CJ considered this very question. He acknowledged that it is often difficult to distinguish between permissible inference and conjecture. Quoting from Jones v Great Western Railway Co (1930) 144 LT 194, his Honour adopted a definition of inference as "a deduction from the evidence" which, if reasonable, may have the validity of legal proof. 110 He referred also to Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, quoting as follows: "Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture." Spigelman CJ stated the test as: "... whether, on the basis of the primary facts, it is reasonable to draw the inference." To similar effect were observations of Gibbs, Stephen and Mason JJ in Barca v The Queen [1975] HCA 42; 133 CLR 82 at 104-105."
Bearing in mind that the Crown case is a circumstantial one based on inferences said to be able to be drawn from a large number of alleged facts, I note that my analysis should not focus on each individual fact but rather their combined force (The Queen v Hillier [2007] HCA 13 at [46]; 228 CLR 618). Other than those facts which I have identified, I need not be satisfied of any particular fact beyond reasonable doubt. It is the elements of the offence and the question of whether the accused improperly obtained a supply of insulin on 31 December 2009 which require proof to that standard (Shepherd v The Queen [1990] HCA 56;170 CLR 573).
Because the Crown case is a circumstantial one, before I could return a verdict of guilty of murder I would need to be satisfied beyond reasonable doubt that no rational hypothesis other than guilt of the offence charged is available on the facts that I find established (Plomp v The Queen [1963] HCA 44; 110 CLR 234; Peacock v The King [1911] HCA 66; 13 CLR 619).
In addition to the above, I have taken into account the following matters of law. By that I mean that if this had been a trial by jury, I would have directed the jury as follows.
It is incumbent upon the Crown to prove each and every element of the offence beyond reasonable doubt. The accused needs to do nothing and prove nothing (Woolmington v Director of Public Prosecutions (1935) AC 462).
The criminal standard of proof is not to be further defined (Green v The Queen [1971] HCA 55; 126 CLR 28).
The act causing death must have been a willed and conscious act (Ryan v The Queen [1967] HCA 2; 121 CLR 205 and Penza and Di Maria v R [2013] NSWCCA 21).
In relation to the evidence identified by the Crown as demonstrating a consciousness of guilt of murder on the part of the accused, I have borne in mind the legal principle that, in order to accept that line of reasoning, I would need to be satisfied that that act was indeed done by the accused; that the act was done to conceal something material to the trial, not something insignificant; and that the act was done by the accused in order to conceal his guilt of the murder of the deceased, as opposed to any other crime or for any other reason (Edwards v R [1993] HCA 63; 178 CLR 193; R v Cook [2004] NSWCCA 52).
On that issue I would also need to keep carefully in mind that persons may seek to conceal things for many reasons, not just because they are guilty of a crime; that an act done because of an awareness of guilt certainly cannot prove guilt on its own; and that, even if I accept that adjustments were made through the MedTech32 system to Mrs Mitchell's medical records, and that it was done with a consciousness of guilt, that act just becomes another circumstance that I would take into account in this circumstantial case.
In Edwards the plurality said at [14]: "14 … And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of "a realisation of guilt and a fear of the truth". 15 Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect." I have kept these principles in mind when considering those matters which the Crown has asserted are indicative of a consciousness of guilt on the part of the accused.
I have also kept in mind that post-offence conduct may also support consciousness of guilt reasoning. In Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270 Latham J said: "6 … before any post offence conduct can … qualify (as a legitimate indicia of a consciousness of guilt), it must bear a particular character. It must be capable of constituting an admission against interest. It must be capable of meeting the conditions analogous to those discussed in Edwards v The Queen (1993) 178 CLR 193 applying to lies. The relevant conduct must be precisely identified and proved by evidence, it must be concerned with some circumstance or event connected with the offence and it must be carried out in circumstances in which the explanation for the conduct is a realisation of guilt on the part of the accused."
The fact that the accused did not give evidence in the trial means nothing and is not to be held against him by me in any way (RPS v The Queen [2000] HCA 3; 199 CLR 620; Azzopardi v The Queen [2001] HCA 25; 205 CLR 50).
Expert evidence was admitted in the trial on the basis that the relevant witnesses had knowledge, training or experience that permitted them to give such evidence (s 79 Evidence Act 1995 (NSW)). Having said that, the assessment of the correctness and probative value of those opinions remains a matter for me as the tribunal of fact. Merely because an expert has expressed an opinion by no means demonstrates that the opinion is indeed correct and must be accepted.
Finally, I must exercise caution about hearsay evidence for the simple reason that by its nature the person who made that statement relied upon for its truth cannot be cross-examined and hearsay evidence is generally unable to be tested deeply - s 165(1)(a) Evidence Act. REVIEW OF THE EVIDENCE Admissions by Accused
Exhibit 3 comprised a Statement of Admissions pursuant to s 184 of the Evidence Act. I am satisfied that the accused made these admissions after receiving advice from his counsel and solicitor and that he understood the consequences of making the admissions.
The admissions were: "General 1. Brian Crickitt ('the accused') and Christine Crickitt ('the deceased') married in March 1991. 2. The deceased died on or about 1 January 2010. 3. The accused and the deceased resided together at 2 Clontarf Close, Woodbine at the time of the death of the deceased. 4. The accused was at all relevant times a doctor of medicine in general practice. Campbelltown Medical and Dental Centre (CMDC) 5. The accused was working at the CMDC from January 2006 until after the death of the deceased. 6. The hours and days that the accused worked at the CMDC were rostered. The accused was rostered to work at the CMDC on 31 December 2009 between 10am and 8pm. 7. The accused had his own consultation room at the CMDC. The accused had a key to the room. Occasionally, doctors would use other doctors' rooms. 8. The usual practice at CMDC was that patients entered a queue on arrival for consultations with a doctor. 9. Patient records at the CMDC were maintained and managed on a computer system known as MedTech32. 10. MedTech32 had both clinical and accounting or financial functions. 11. Each doctor at the CMDC had a computer in his or her consultation room. 12. Each doctor had a confidential username/login and password for the computer. CMDC policy was not to share or allow others to use a username/log-in and password. 13. Patient files were accessed by employees and doctors on the computer by use of the username/log-in and password. 14. Doctors at CMDC generated prescriptions for patients on the computer using Medtech32. 15. Medtech32 recorded changes and additions made to the database if used to access a patient file according to a particular log-in. The NovoRapid prescription on 31 December 2009 16. The accused treated a patient, Kristina Mitchell, at the CMDC at approximately 3:12 PM on 31 December 2009. 17. The accused treated a patient, Brett Jackson, at the CMDC at approximately 4:58 PM on 31 December 2009. 18. At 5:01 PM on 31 December 2009 the accused issued a prescription to Kristina Mitchell for NovoRapid FlexPen 3ml (5 x 5) ('the NovoRapid prescription') and signed that prescription in the 'Doctor' field. 19. The NovoRapid prescription was subsequently filled by Evon Binyamin at the CMDC pharmacy. 20. It is not disputed that the signature in the 'Patient/agent' field of the prescription is that of the accused. The similarities between the specimen signatures examined by Melanie Holt and the signature appearing in the 'Patient/agent' field of the NovoRapid prescription indicate that it is highly probable that the accused is the signatory. Medications at the home 21. The accused was acting as the treating medical practitioner of the deceased preceding her death. 22. A number of general practitioners, including the accused, and specialist doctors, had treated the deceased for a variety of complaints during her marriage to the accused. 23. The accused prescribed the deceased a number of medications during their marriage. A number of these medications were initially prescribed by specialists or other general practitioners and subsequently by the accused. 24. As at 1 January 2010, the accused prescribed the following medications to the deceased: • Oroxine, 100mg per day. • Deralin, 40mg twice per day. • Lexapro, 10mg per day. • Zyprexa, 10mg per day. • Mobic, 15mg per day. 25. The accused collected medications prescribed to the deceased from the CMDC pharmacy. 26. The deceased was not a diabetic. 27. A packet of Ativan 1 mg 50 tablets was found by police in a drawer of the vanity in the ensuite bathroom attached to the deceased's and accused's bedroom. Ativan is the tablet form of the drug Lorazepam. 28. The Ativan tablets had a label on the box indicating that they had been prescribed for Elizabeth Razmovski by Dr Rifaat Girgis, a doctor at the CMDC. 29. Ms Razmovski was a patient at the Campbelltown Medical and Dental Centre, and saw numerous doctors at that practice, including Dr Girgis and the accused. 30. On 18 March 2008, 30 April 2008 and 13 April 2009, Dr Girgis prescribed Ms Razmovski Ativan tablets 1mg (50 tablets). 31. On 20 April 2009, Ms Razmovski had a consultation with the accused at CMDC. Financial 32. In around 1995 the accused and deceased bought a property at 2 Clontarf Close, Woodbine ('the Woodbine property') for approximately $246,500. 33. In around 2000, the accused and the deceased bought a property at 70 Woodhouse Drive, Ambervale ('the Ambervale property') for $175,000. They ran a medical practice from the Ambervale property until 2006 when the accused commenced employment at the CMDC. The accused and deceased sold the Ambervale property sometime 2009 for approximately $320,000. 34. As at 1 January 2010 the accused and the deceased owned the following property: • The Woodbine property, subject to a mortgage with Bankwest (account 100-155763-0), with $283,293.45 owing as at 28 January 2010. • 47 Lawn Avenue, Bradbury, owned by Crickitt Investments Pty Ltd as Trustee of 'the Divine Trust', subject to a mortgage with ING (account 23114659) with $214,633.11 owing as at 31 December 2009. As at 20 June 2010, the Financial accounts of the Divine Trust recorded the value of the property as $265,383.95. 35. In the financial year ending 31 June 2010, the accused had declared income of $98,730 with the deceased declared income being $45,886. The accused was also the Executive Director of Brian Crickitt Pty Ltd which was paid revenue, after expenses, of $247,137.07 from Primary Health, as a result of the accused work at the CMDC. 36. In addition to owning the property at Bradbury, Crickitt Investments Pty Ltd as Trustee of 'the Divine Trust' also owned various shares and managed funds. The Divine Trust was a discretionary trust, with the accused and deceased as beneficiaries. In 2009, the trust had total current assets recorded on a costs basis of $71,927.92, which included $67,462,57 in shares and $4,465.35 in cash. As at 31 December 2009, the market value of these shares was $99,473.73. By 2010, the amount was $72,387.86 in total current assets, comprising $68,334.46 in shares and $4,053.40 in cash. 37. The accused self-managed both his and the deceased's superannuation fund. The money in the fund was invested in various shares and managed investments as recommended by their financial advisor at the time. The net assets of the fund as at 30 June 2009 were $179,785.30 and $202,280.05 as at 30 June 2010. Insurance 38. A life insurance policy in respect of the deceased (policy number 8207411) was taken out with Aviva in or about March 2005. 39. At the time of the deceased's death, the deceased had a life insurance policy with Aviva. That policy insured the deceased in the event of her death for a lump sum of $568,230 as at 22 March 2009. 40. The accused was the beneficiary of the life insurance policy in the event of the death of the deceased. 41. A life insurance police in respect of the accused (policy number 1330123) was taken out with Aviva in around 2005. That policy insured the accused in the event of his death in the sum of $876,729 as at 8 September 2008. The deceased was the beneficiary of the life insurance policy in the event of the death of the accused. 42. The value of each policy increased automatically each year by virtue of the policy. 43. The accused treated a patient, Kristina Mitchell, at the Campbelltown Medical Centre at approximately 3pm on 31 December 2009. Telephone records 44. At all relevant times the number of the home telephone service of the accused and the deceased was 4620 9759. 45. At all relevant times the number of the mobile telephone service of the accused was 0421 040 824. 46. At all relevant times the number of the mobile telephone service of the deceased was 0414 604 068. 47. At all relevant times the number of the mobile telephone service of Linda Livermore was 0451 147 128. Internet 48. As at December 2009, the accused had a personal email address . Fingerprints 49. Three original scripts (the Novorapid script, Lantus Solostar script, and Mogodon, Colgout and Asmol script) prescribed for the patient Kristina Mitchell on 31 December 2009 were examined for fingerprints. 50. Six fingerprints suitable for comparison were located on the three scripts in total. None of the six fingerprints located on the scripts belonged to Kristina Mitchell or the accused. 51 Three fingerprints suitable for comparison were identified as belonging to the officer in charge of the investigation and a government officer responsible for processing scripts. 52. Three fingerprints suitable for comparison were not identified. The three fingerprints not identified did not belong to any person known to have handled the scripts including the pharmacist at CMDC and government officers responsible for processing scripts. Investigations 53. Between 5 September 2014 and 4 December 2014, surveillance devices recorded conversations in the accused's home at 2 Clontarf Place, Woodbine pursuant to a lawfully obtained warrant." Medical evidence Insulin as a cause of death
Professor Drummer, a forensic pharmacologist and toxicologist, gave the following oral evidence: "Q. Going to paragraph 24 of your report, you refer to the effect of insulin when given to excess, particularly to a non-diabetic person and how it can rapidly cause "low to pathological low glucose concentrations". When you say "rapidly", what are you referring to? What do you mean by "rapidly"? A. Oh, well, that's in the context of where it was administered, allegedly, or - and the dose and the formulation, the type of formulation; some formulation have a slower action than other formulations; but, ordinarily, if some amount of insulin was injected it would probably take somewhere between an hour or more, depending on the dose, formulation and where it was injected. Q. So, are you saying that an hour or so to cause "pathologically low glucose concentrations"? A. Well, it all depends on the dose and where it was injected and the formulation. So, it could be quite rapid, if it was rapidly available insulin; if it was a slow acting form of insulin, it could take some hours. Q. Now, if it was the fast acting insulin of the kind that is contained in a NovoRapid pen - I think it's called "Aspart insulin" - if a [lethal] dose of 300 to 500 units of Aspart was given intramuscularly in the buttocks to a person who was not a diabetic, how rapidly would that cause coma, in your view? A. Oh, it could be quite rapid. It could be within an hour." (T.328.22) "Q. As a general proposition, insulin administered subcutaneously would take longer to have an effect than when it is administered intramuscularly? A. That's a generally - that's generally true." (T.331.43)
Professor Carter, an endocrinologist, gave oral evidence as follows: "Q. Professor, do you tell the Court that the article by Professor Marks that you've been shown, exhibit W, is recognised as being one of the leading articles in relation to intentional overdosing with insulin? A. Yes, I think that the person who has published the largest reviews relating to the largest number of people who have had accidental or intentional overdoses with insulin have been written by Professor Marks." (T.339.8) "Q. You refer there to "short acting insulin such as NovoRapid" and you state that "the glucose lowering activity of a drug like NovoRapid would occur after 10 to 30 minutes of administration"? A. As a general statement, yes. Q. And, "The peak activity is somewhere between half an hour and three hours after administration"? A. As a general statement, yes. Q. And, "The duration of the activity is somewhere between three hours and five hours"? A. As a general statement, yes." (T.339.18) "Q. Perhaps if I could be more specific in my question. In terms of the rapidity of onset of symptoms and the rapidity of coma and death in the event of an overdose, could you compare subcutaneous administration with intramuscular? A. Yes. So, there is greater blood supply into the muscles and if the insulin is injected into the muscles, the insulin is absorbed more quickly into the capillaries and other blood vessels compared with subcutaneous injections." (T.339.40) "Q. Is it difficult or easy for a doctor to extract or decant the insulin from a NovoRapid pen? A. No, it wouldn't be difficult at all." (T.340.28) "Q. And in paragraph 21 of your report, do you state that the fatal dose of insulin would be in the range of "300 to 500 units"? A. Well, I hope I stated that it was impossible to be accurate with respect to how much insulin could kill a person through hypoglycaemia and the data that leads to that conclusion of around 300 to 500 comes from the medical literature; when perpetrators of homicide have confessed to how much insulin they injected or, in cases of suicide, trying to work out, from evidence left behind, how much insulin may have been injected. But there is an enormous amount of individual variation in the amount of insulin that would be required to cause profound hypoglycaemia and then there is an enormous amount of individual variation with respect to what effect that profound hypoglycaemia has on the subject. In other words, would it lead to death quickly; or would it not lead to death?" (T.341.16) "Q. So, in your view, would the fatal dose of Aspart from NovoRapid be more or less or the same as the 300 to 500 units postulated by Professor Marks for regular or normal insulin? A. Well, there are no data on that but, theoretically, I would expect a smaller dose of Aspart to achieve that end because the onset of hypoglycaemia would be sooner with Aspart than it would be with regular insulin and peak activity of the insulin would be earlier than it would be with regular insulin ... So, on the basis that with a large dose that profound hypoglycaemia could occur sooner with Aspart than with a regular insulin, I would think that it's more likely that death would occur sooner with Aspart than with a regular insulin. Q. Doctor, if a non diabetic was injected intramuscularly, with 300 to 500 units of Aspart, are you able to say how soon the recipient of that amount of Aspart would feel some symptoms? A. Well, very variable, but it could be as soon as ten minutes; but within half an hour would not be uncommon. And one of the reasons I am coming to that conclusion is with what happens to people with diabetes who are having Aspart before meals. It's recommended that Aspart be taken at the commencement of a meal so that carbohydrate is in the system by the time the insulin is absorbed and, therefore, there is some correlation between the glucose level in the blood increasing and the insulin level in the blood increasing, which is much more likely to achieve the goal of having normal blood glucose levels. Every endocrinologist would know, and I think every diabetic person taking Aspart would know that, if Aspart is injected and then there is a delay before the meal, that the chances of them getting symptoms of hypoglycaemia before starting the meal increase the longer that delay. … Q. And in your opinion, in the same situation, a non diabetic injected intramuscularly with 300 to 500 units of Aspart, how quickly would the person become unconscious? A. Well, that's also very variable, but it could be within half an hour or - yeah, half an hour or less. Q. Again, is that based upon clinical experience? A. Yes, clinical experience and publications in the literature. Q. In your view, again in the same situation, a non diabetic injected with 300 to 500 units of Aspart intramuscularly, how soon would death occur if there was no medical intervention, the patient was not in a position to eat anything and nothing was done to alleviate the situation? A. A very difficult question to answer, but the information in the literature has indicated that death has occurred within three hours, but there are so many factors that influence whether or not somebody survives in that situation. If - well, some of the factors include body weight. If somebody is thin, elderly, and is malnourished and has poor stores of glucose in the liver, hypoglycaemia and coma and death would be expected to occur much sooner than an otherwise fit and healthy, younger person who is well nourished. The sensitivity of the person to the insulin is also very important. Insulin, basically, acts by attaching to specific receptors on cells and, in effect, opening a gateway whereby glucose goes into the cells, and the more insulin in the bloodstream, the more efficient that process is. But also there's something like a magnetic attraction between the insulin and the receptor and there are situations where that attraction is reduced and so insulin isn't as efficient. So, that's what we call "insulin resistance", but the attraction might be greater so that even small amounts of insulin in the circulation, those gateways open up, so those people are more sensitive to the actions of insulin." (T.341.44, T.342.9 - T.343.20) "Q. And, professor, at the end of your report in paragraph 41, you state that, "Based wholly or substantially on the knowledge" of what you were provided with to produce your report, you are of the opinion "that it is possible, given all the circumstances of the matter, that Christine Crickitt could have died from an overdose of insulin". Are you still of that view? A. Yes, I'm of the view that it's possible, but I cannot say one way or the other, but it's - everything that I was provided with would be compatible with the postulate that insulin was involved." (T.344.14)
In cross-examination Professor Carter said: "Q. And in that article [Exhibit W] Professor Marks indicates a period of six to 12 hours of coma to produce irreversible brain damage and death as a general proposition? A. You showed me that. Q. Yes. You don't disagree with Professor Marks' opinion in respect of that period? A. Could you repeat exactly what he said again, please? Q. The period of six to 12 hours of coma produced by hypoglycaemia is generally required to produce irreversible brain damage and then longer to kill? A. Well, I would think it depends on how you define "generally", but I don't strongly disagree with that knowing that there are exceptions where irreversible brain damage can occur earlier than the six hours and death can occur earlier than the six hours." (T.347.39) "Q. You do not disagree with the proposition Professor Marks expresses there that to produce a predictably fatal outcome a large quantity, probably in the region of 1,000 units, might be required? A. Well, I think most people would agree that the larger the dose the greater the chances of death occurring. I do note that, in his review article four years later, he said: "These suggest that, in an otherwise healthy subject, something in the region of 300 to 500 units of regular insulin are required to produce a fatal outcome." For example, case 60. So, it's a very grey area, I think, because of obvious reasons; there are no controlled trials on this subject and the more information that's available from homicide or attempted suicide or suicide, the easier it would be to come up with a meaningful conclusion. But I would agree that 1,000 units is highly likely to achieve a fatal outcome, but lower doses have been shown in numerous instances to produce a fatal outcome." (T.349.9) "Q. In any event, you don't disagree with Professor Marks' comment that, in his 2005 article, a dosage in the vicinity of 1,000 units or more would be consistent with a predictable outcome? A. Well, I would agree absolutely with his statement, "The dose necessary to produce a predictably fatal outcome is large." I agree totally with that. And then he's saying, "Probably in the region of 1,000 units to judge from the literature relating to suicide and homicide" and it's not exact - it's not an exact comparison with the 2009 comment he made, but it's my impression that, as he became aware of more instances of suicide and homicide, he lowered that 1,000 units. But I would think that, if somebody wished to be almost 100% certain of achieving death with insulin, that person would give as large a dose as they could possibly give in the order of in excess of 1,000, but we do know that doses less than 1,000 can achieve it. So I really can't comment as to how likely it is under 1,000 versus over 1,000, except that the larger the dose, the greater the chance of death occurring." (T.350.5)
Professor Marks gave evidence audio-visually from the United Kingdom. He also was an endocrinologist and had published two articles which were referred to in the evidence on this subject, i.e. "Hypoglycaemia: Accidents Violence and Murder Part 2" in 2005 (Exhibit W) and in 2009 an article entitled "Murder by Insulin: Suspected, Purported and Proven - a Review" (Exhibit BE). Professor Marks had an interest in accidents, violence and murder involving insulin.
In his report to the Crown of 29 November 2011 at p 5.9 Professor Marks said: "In the absence of any definable cause for Christine Crickitt's death the possibility that it might have been produced by the surreptitious administration of insulin was raised by those previously consulted. While this cannot be excluded with certainty there is nothing to suggest that insulin was involved and some minimal evidence to suggest that it was not."
In his oral evidence in chief, he explained that observation as follows: "Q. The first question and answer related to that statement on page 5 of your original report that there was nothing to suggest that insulin was involved and some minimal evidence to suggest that it was not. In your conversation with Ms Turner, did you explain that your reason for coming to that conclusion was your belief that it had taken less than six hours for Christine Crickitt to die? A. It is the - that was the main reason why I thought that that was minimal evidence for believing that insulin might not have been involved. I would have expected her to have stayed alive for more than six hours following the injection of insulin. Q. And when the evidence about the timing of her death was explained to you further, namely, that the accused had come home at 8pm and the body hadn't been discovered until about 8am, 12 hours later, did you revise your opinion in accordance with the notes of your conversation with Ms Turner? A. I worked on the basis that I was now put in the position of being asked whether 12 hours was - which would have been at least 12 hours - without anybody doing anything, if she had been given insulin 12 hours before, that reduces the minimal evidence for insulin not having been administered. (T.366.18) Q. In light of that, are you, once again, of the view that there is neither any evidence for, nor against, the administration of insulin to cause the death of this woman? A. Absolutely. Q. No medical evidence, I meant? A. No evidence one way or the other." (T.368.1)
In cross-examination Professor Marks was taken to the following passages from his report: "Q. And you say: "These data suggest that most people who are in hypoglycaemic coma for less than six hours recover without permanent brain damage, whereas the incidents of brain damage increases thereafter." A. Yes, that's correct. Q. And, further on in that same passage you say: "Death can occur at any time after six hours or more of coma, but can, very rarely, also occur after a shorter period." A. Yes." (T.368.23) "Q. All right. The period in which hypoglycaemia may be induced in an individual with an insulin overdose varies very much from case to case, is that correct? A. It varies on the dose given, the responsive time of the person's own body, when they last ate. In fact, if they have recently eaten, hypoglycaemia may take quite a long time to occur in somebody after they've been given insulin." "Q. If you were to assume a meal comprised of various food groups, such as steak, potatoes, coleslaw? A. Yes. Q. Consumed some time after 8pm, can you give us any indication how long consumption of that food might have affected response to insulin and development of hypoglycaemia? A. It might have delayed it as long as three or four hours. On the other hand, it might have had very little effect, depending really on the sensitivity of the patient to insulin that was administered, the size of the dose of the insulin, and, as I say, how well or rapidly it was going to be converted in the intestine into glucose, which is the form in which carbohydrate is absorbed into the blood. So, it's a variable feast. It is possible for it to be delayed up to three or four hours. Whether it was or not is impossible to determine. Q. A further significant factor affecting response to insulin is obesity, correct? A. Yes, yes. Q. You're aware that the deceased in this case had a body mass index of 37.4 kilograms per square metre? A. Yes, she would have been less sensitive to insulin than somebody who was of average or normal weight." (T.370.5) "Q. In the conference you had with the Crown Prosecutor that's recorded in the email exchange you had last month A. Yes. Q. - you expressed the view - and this is on page 1 of the email exchange that, having regard to the obesity of the deceased, she would have needed a very big dose of insulin and she would probably have needed 12 hours or more to die? A. That is what I said, that's what I believe. But these are probabilities as opposed to certainties." … A. The dose of insulin is more important than the nature of the insulin because there is a finite limit, a rate at which insulin can be destroyed in the body. So, regardless of the type of insulin, it's the duration of the hypoglycaemia and the depth of the hypoglycaemia that is important, but the length is more important. So that we know that most people who are successful in killing themselves with insulin have given themselves doses of about 1,000 units or more. … I'm quite incapable of giving you any better estimate of the amount of insulin that would be required, but I would have said that the most likely dose of insulin necessary in this case would be over 500 units and probably nearer 1,000 units. (T.370.46 - T.371.42) … A. Oh, I mean, 500 units or 1,000 units is the sort of dose that people with - who attempt suicide use. And, as I've pointed out, if they have eaten recently and in certain other cases, it may be up to three or four hours after the injection of insulin. This is unusual. I mean, the normal course of events is that one would - somebody after a big dose of insulin would have become sufficiently hypoglycaemic to have gone into coma within an hour, but there are exceptional cases, particularly when people have eaten very recently and if they are resistant to insulin where it may be delayed three or four hours. Q. Having regard to the level of obesity of the deceased in this case, are you able to offer any opinion regarding the probable period required for such a dose --- A. I would have expected her to have been unconscious and in coma within two hours of a large dose, let us say over 500 units of insulin. I would have expected the most likely thing would be for them to have gone into hypoglycaemic coma within about two hours. Q. And then is it your evidence that you would expect it would take probably 12 hours or more of hypoglycaemic coma before death? A. That's - I mean, that's what would be what one might expect. In fact, it quite often takes much longer, but these are, and I point out, these are really average - well, not average figures, but figures we know have been obtained. I came across just the other day a report of a patient who died within six hours of becoming hypoglycaemic, but - it can happen very quickly, it can happen more slow - over a few hours, or, as in the majority of cases that we know about, they take 12 or more hours to die, and usually, under those circumstances, they die from secondary complications because somebody has usually found them, given them glucose, they have not come around because irreversible damage has already occurred to their brain, which takes about six hours to develop, and they die of bronchopneumonia usually ten days or so later. That's the traditional - the most common phenomenon. But, as I pointed out, all things can happen and that is why I felt that really there was very little evidence one way or the other to support a diagnosis of insulin poisoning in this case." (T.373.12) "Q. 500 or more of insulin? A. Yes. Q. During those two hours, what would have happened to a person who received such a dose of insulin? Would they be confused? Would their speech be slurred? Would they be able to function normally? A. Well, again, this is one of those things that one has to rely upon. I've published cases and one knows there have been people who have given themselves these sort of doses of insulin who have then walked into the casualty department or accident and emergency department of a hospital two or three hours later and said what they have done, been still perfectly conscious and so on. So these cases occur, but the typical response to even a smaller dose of insulin is that during the first 20 minutes or so nothing happens. After about half an hour to an hour people start to sweat, feel uncomfortable, feel unwell, shaky and so on, but they are still able to get around. Then, as the blood glucose level continues to fall or stays low for a further time, they then become stuporose, that is, that they are able to be aroused and then eventually they go into coma where nothing you can do to them will make them respond. But that is the sort of thing that you would expect to occur in a typical case of somebody given a dose of insulin big enough to overcome their natural bodily defences against hypoglycaemia. So, for the first 20 or 30 minutes after a big dose of insulin, somebody is able to get around, do things, talk to people and usually resist if they know that this is a consequence of them being injected. I think I actually - well, I know of at least one case in which somebody was treated, given a big dose of insulin, they managed to run away and escape and collapse in the arms of somebody in another building, by which time they were able to communicate to tell them there was something wrong, that they had been given insulin, and eventually the people who injected her were brought to trial. But that is just one example where somebody was able to overcome the fact that they had been poisoned with insulin." (T.374.8)
The Crown submitted that on that state of the evidence, the position was "implacably neutral", i.e. that insulin administration leading to fatal hypoglycaemia could not be excluded but there was no evidence on clinical grounds that it was involved.
The defence submitted that while the accused could have extracted insulin from multiple FlexPens into a syringe and injected it, and that there was evidence that this could be done relatively easily, there was no evidence to support the theory that it occurred. No syringes or used FlexPens were found despite searches of the accused's home and bins.
The defence submitted that when considering the time required for an insulin overdose to kill, it was necessary to take into account two periods, i.e. the period required to induce coma and then the period for coma to lead to irreversible brain damage and death. The defence characterised the evidence of Professor Marks as indicating that after a big dose of insulin a person could become sufficiently hypoglycaemic to go into a coma within an hour but where the person had eaten recently and was insulin resistant it might take three or four hours and that having regard to the obesity of the deceased, and a dose of 500 units, coma would most likely occur within about 12 hours. The defence submitted that the effect of the evidence of Professor Marks was that in the majority of cases it took 12 hours or more of coma until death and that in this case, given the obesity of the deceased, he would expect 12 hours or more of coma until death, although this was based on probabilities rather than certainty.
The defence submitted that although in theory the timeframe between when the deceased was last confirmed alive (7.36pm) and first confirmed dead (8.45am) was approximately 13 hours realistically the available timeframe was likely to be much narrower. The defence submitted that the probabilities favoured the deceased having a meal after the accused returned home at about 8pm. This was consistent with the text messages between them. The defence also had regard to the circumstances in which the deceased was found, i.e. wearing a nightie and having gone to bed. The defence submitted that it was difficult to envisage a scenario in which the accused could have injected the deceased with insulin until after the meal. The defence submitted that having regard to the deceased's obesity and the fact of a meal, the onset of any hypoglycaemic coma, would have been delayed and was unlikely to have occurred until the late hours of the night of 31 December 2009.
As part of the same submission, the defence referred to the observations of the first police officers to arrive at the scene to the effect that the deceased's body appeared to be affected by rigor mortis. This observation was made at about 9 - 9.30am. When Detective Stephens examined the deceased at 13.05pm he observed fixed lividity consistent with the deceased's position.
The defence relied upon the evidence of Professor Duflou. The defence submitted that Professor Duflou's opinion was that, while it was very hard to say, lividity to the extent that he observed on the photographs taken by Detective Stephens could mean that the deceased had remained in situ for 12 hours or more. He said that while he could not exclude it, it would be relatively unusual for lividity to become fixed in that way in a period of six hours. Professor Duflou said that he would feel much more comfortable with a period of 12 hours.
In his report of 22 March 2011 (Exhibit AK), for use in the coronial inquiry, Professor Duflou said: "8.1 Can you comment upon the likely time of Christine Crickitt's death (noting as relevant, the variables which may impact cause of death)? The most accurate means of determining time of death is by direct observation by a trained observer. An example of this would be a medical practitioner observing a cardiorespiratory arrest in a patient. Less optimally, a reliable non-expert witness may be able to provide such information. Much less accurately, various observations can be made of a body, from which can be interpreted a likely time of death. In the early post mortem period, such observations can include identification of rigor mortis (stiffening of the body muscles), identification of post mortem lividity (the settling of blood in dependent parts of the body) and cooling of the body. Other less traditional methods which could also be used in the early post mortem period could include the response of the patient to attempted resuscitation, and the measurement of various biochemical alterations which may occur. With the exception of direct observation by a trained observer, all methods are inherently inaccurate and unreliable, some more so than others. There is the added problem in the case of Mrs Crickitt of her having a thyroid condition. Such condition could raise the metabolic rate, and I suspect it is possible that it could add to uncertainty in relation to making an estimate of time of death. I note that the deceased was observed to be cold to touch, to have rigor mortis and to have post mortem lividity consistent with her position, as reported by Detective Sergeant Stephens at 13.05 hours on 1 January 2010 (page 7 of his working notes). This would not be unexpected considering the deceased was independently confirmed dead shortly after 08.15 hours that morning, some 5 hours previously. By the time the body was examined by Dr Irvine the following morning, rigor mortis had worn off, and there was an early infestation with fly eggs. Unfortunately, in this case I do not believe it is possible to comment on the likely time of death in this case, without independent information on environmental temperature in the bedroom, the deceased's body temperature on discovery, and optimally the deceased's body temperature prior to her death. However, it is in my view not unreasonable to opine that death could reasonably have occurred at any time between when she was last independently verified as alive, presumably on 31 December 2009 and when she was confirmed dead on 1 January 2010. The loss of rigor and presence of fly eggs at autopsy would tend to suggest a longer rather than shorter post mortem interval, but this is an extremely subjective view, and there are many circumstances where this may not be the case, including the present case.
Oral evidence of Professor Duflou on this issue was as follows. "Q. As a general proposition it's an unreliable or difficult exercise for a forensic pathologist to determine accurately, at least, the time of death? A. Yes, I think it's fair to say it's almost impossible, unless there is a person present who is knowledgeable in such matters and can physically determine time of death as it happens. Q. Indicia as to time of death, lividity and rigor mortis? A. Those are two that are commonly used, yes. Q. In respect of lividity, is it the case that it appears soon after death, but only becomes fixed at a later time? A. Yes, correct. In most circumstances, in fact almost all circumstances, post mortem lividity or the settling of blood becomes apparent a short while after death, probably 30 minutes; possibly an hour or two at most. It then remains in that position unless the body is moved into another position. So, if you consider, to begin with, the body lying on its back, you will have post mortem lividity as a result of blood settling down on the back, so there would be red and blue discolouration of the back. If you then turn over the body, over the next six, 12, 24 hours, that post mortem lividity can then move to the part of the body that is next closest to the ground, if you like. If you don't move the body in the first 12, 24 hours or so, the lividity will become fixed. In other words, if you move the body after, let's say 24 hours, turn it over, that lividity then does not move; it remains where it had settled in the first place, so it is fixed in that position. (T.288.15) … Q. Approximately how long after death would it take for that effect to be possible? A. Are you referring here to paradoxical lividity? Q. Yes. A. It's hard to say in individual cases because you very much have variability in this occurring, but you can certainly get movement of lividity a day or more after death has occurred. Q. Can I ask you some questions now about rigor mortis? How long generally after death does rigor mortis appear? A. It probably tends to appear within an hour or two after death, becomes quite - in the smaller muscles of the body, so typically your hands, your jaw muscles. It then distributes throughout the body and, in general terms, by about three to six hours you tend to find rigor mortis in the major muscle groups as well. There are significant qualifiers to that, but that is a - as a general principle, probably by about six hours or so, you will have good going rigor mortis in the body. (T.288.50) Q. Dealing, firstly, with the photograph taken at the crime scene, do you see evident lividity? A. Yes, I do. Q. At the time that I showed you that photograph this morning, did you make a comment about the face of the deceased? A. Yes, it really looks quite suffused, in other words, quite intensely purplish in colour. (T.412.38) … Q. Does it appear to you that the lividity on the torso, evident on the photograph taken at the crime scene, remained fixed? A. Well, I think that would be fixed lividity, yes. Q. Are you able to give an opinion as to the likely period of time after death that the deceased would have remained in situ for the lividity to fix? A. The lividity of this extent could mean that it's 12 hours, more than 12 hours, it could certainly be days long that lividity. I agree it is very hard to say but it certainly appears fixed here. Q. Is it likely in your opinion that the lividity would become fixed in that way, as evident in that photograph, in a period of, say, six hours? A. That, I think, would be relatively unusual, but I couldn't exclude it; but it would be a relatively unusual event. Q. Do you tend to the view that it would be more consistent with a period of 12 hours or more? A. Mm, yes, I think more than 12 hours, I'd feel much more comfortable with. … Q. And you were asked some questions about lividity. Would you have a look at exhibit H, please, photograph number 30 you were shown today (shown). A. Yes. Q. Do you agree that it appears to be her right cheek that is in contact with the bedside table? A. It appears to be, yes. Q. However, the left side of her face would be closer to the ground? A. Yes. Q. Do you agree that, when she was turned over - I think it is the exhibit that was just tendered by my friend, number 5 - do you agree that the lividity is all on the left side of the face? A. It's on the left and it's on the forehead as well by the looks of things, but yes. Q. Do you agree that there's no lividity on her right cheek? A. It appears not, no. (T.415.44)
The defence submitted that on the basis of that evidence, although the evidence of post mortem changes could not establish the end point of the timeframe available with any degree of certainty, the evidence of both lividity and rigor mortis tended to suggest that death did not occur at any time shortly before the triple-0 call. The defence submitted that it was more likely that death occurred some hours before.
The defence submitted that when that evidence is taken into account with that of Professor Marks concerning the timeframe required for coma and death to result from insulin poisoning, the likely time required for the injection of insulin to induce hypoglycaemic coma and for that hypoglycaemic coma to cause death, did not sit comfortably with the timeframe available. The defence submitted that although the evidence bearing on the timeframe available did not exclude the possibility that insulin overdose was the cause of death, it did tend against such a conclusion when considering whether it was established beyond reasonable doubt that an insulin overdose was the cause of death.
For completeness, the evidence of the forensic pathologist, Dr Irvine, who carried out the post mortem examination, should be taken into account on this issue. She was not prepared to give the presence and extent of lividity the same emphasis as Professor Duflou. "Q. Lividity is one factor that may be taken into account in seeking to determine or assess a time of death, correct? A. I'm not sure how to answer that question because we observe it and make sure that it is, in general, consistent with the circumstances, but we don't observe it for the purpose of determining the time of death. Q. I see. Well, perhaps I can get it another way. From a forensic pathologist's point of view, lividity may be of significance where it is fixed, that is, it has become fixed in the body? A. No, the most important issue surrounding lividity is when it's present in a distribution which is in contrast to the position the body was found, indicating that a body had been moved. Q. Can you tell us when you would expect to find lividity fixed, how long after death? A. There is no specific time in which I would expect it to be fixed. Q. Is there a range of times where you might expect it to be fixed? A. Not even a range of times. If it is fixed and it's inconsistent with the position of the body, then the body has been moved. It's very difficult to give you a range because it varies so much between people and there's just too many circumstances. Lividity, which is the settling of blood after death, is but one post mortem change. The whole process can be faster for a various number of reasons and that would include lividity." (T.305.15)
On the whole of the evidence, I have concluded that the defence submission on this issue is of limited force. If it be the case that insulin was involved in the death of the deceased, the issue of the amount of insulin injected is of considerable importance and there is no evidence concerning it. There is also the enormous variation in the reaction of individuals to insulin which, in the case of the deceased, is unknown. Professor Marks and Professor Carter were very careful to express their opinions in terms of generality and even then those opinions were highly qualified. Accordingly, while the fact of the deceased's obesity and the likelihood that she had consumed a meal after the accused's arrival home and before the asserted injection of insulin are important, the start point for any symptoms of insulin poisoning (if it occurred) cannot be determined with any useful particularity.
The same observation applies to the issue of lividity and the contribution which it might make (if any) to determining the time of death in this case. Clearly Dr Irvine was of the opinion that it made little, if any, contribution to such a determination. The opinion of Professor Duflou was essentially based on photographs taken at approximately 13.05pm, i.e. 17 hours after the accused arrived home from the CMDC. Little weight can be placed on the observations of the police officers, only one of whom touched the deceased's body and found that the leg was cold. Otherwise the observations were made from a distance and, one would assume, were not directed specifically to the question of rigor mortis.
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. The purported injection site
The direct evidence on this issue comprised the photographs Exhibits S and AL, the reports of Dr Irvine and Professor Duflou and their oral evidence. It was common ground that the buttocks were a usual site for an intra-muscular injection.
In her amended autopsy report of 23 February 2011 (Exhibit AG) Dr Irvine said: "There were focal contusions on the right breast, right buttock (x by two) and right posterior upper arm (x 3). … Subsequent review of photographs taken at the time of autopsy showed that the described contusion on the upper outer quadrant of the left buttock contains a discrete minute mark towards the 10 o'clock position of the contusion. It is possible that this mark represents an injection site. … On the left upper outer buttock were two faint grey mauve contusions the upper most measuring 1.3 x 0.6 cm and the lower most measuring 2.5 x 1.4cm."
The conclusion by Dr Irvine was that the deceased had died of an undetermined cause.
In his report Professor Duflou said: "8.2 Can you make any observations from the autopsy and toxicology reports and photographs which would assist the State Coroner determine the manner and cause of Mrs Crickitt's death? In particular, are you able to make any observations with respect to: a. The apparent areas of bruising and other markings on the left buttock, right arm and right hand. b. The apparent abrasion on the chin. c. The apparent broken nail on the left index finger. d. The toxicology results. e. Other areas of possible trauma/markings apparent from any of the autopsy photos? I agree with the comments made by Dr Irvine in her comprehensive autopsy report. There is no obvious cause of death in this case. Diseases resulting in sudden death which have been effectively excluded include coronary artery disease, valvular heart disease, myocardial infarction, cardiomyopathy, myocarditis, abnormalities of larger blood vessels of the body including pulmonary embolism and aortic dissection, abnormalities of the brain including cerebrovascular disease and berry aneurysms, tumours causing sudden death, significant lung disease, and various endocrine disorders known to kill suddenly. There is also no definite traumatic cause of death; specifically, there is no lethal head injury or invariably fatal neck injury. Toxicological testing, similarly has not uncovered a drug or toxin-related cause of death. In the absence of any definite other evidence, the cause of death given by Dr Irvine is in my opinion entirely reasonable and appropriate. Could there be a natural disease process which was not detected at autopsy? The answer to this undoubtedly is yes, but such a cause of death would be very uncommon in a middle aged woman with no history to suggest such a process. Possibilities which could cause sudden natural death; without morphologic abnormality include various cardiac channelopathies (for example long QT syndrome), whether congenital or secondary to medication, and seizure disorders (for example epilepsy). However, I emphasise that this would be most unusually in a 58 year old woman with no prior history who has been on medication without observable side effect for a significant period of time. The injuries observed on the body are of themselves not lethal. There are a number of minor bruises some of which are old, and the injury to the neck, although worrisome would not of itself be likely to have caused death through neck compression. Had there been significant lethal neck compression, say in the form of manual strangulation, I would have expected petechial haemorrhages in at least some of the various parts of the face specifically excluded at autopsy, and likely injury to the small bones of the larynx (specifically the hyoid bone and thyroid cartilage). Also, I would have expected but not always seen more injury to the external surface of the neck and more bruising to the internal structures. Although I cannot positively exclude lethal neck compression in this case, it would be a most unusual case for lethal manual strangulation. The bruising to the left buttock is of concern. There appears to be a relatively minor bruise, which appears to surround a small defect in the skin, possible a needle puncture. If this is indeed the case, then the likelihood of the deceased having one or more drugs administered to her in the time preceding her death becomes a strong possibility. The problem in this case, though, is that no drugs which are typically administered by injection have been detected, and the drugs which are present are at clinically expected levels. There are certainly many drugs and poisons which could be administered, cause death in a short period of time, and which would not be able to be detected at autopsy. In this case, administration of insulin could be one such possibility, although I emphasise that this would be one of many substances which could be administered and cause rapid death without being detectable."
The background to the evidence of Dr Irvine was that although she had noted the bruises on the left buttock and photographed them (Exhibits S and AL), she did not at the time appreciate that the photographs may have shown an injection site. Subsequent to the preparation of the original autopsy report, two police officers, Detectives Burchell and Cole, in December 2010 inspected the photographs taken at autopsy which were on Dr Irvine's computer. Her evidence in chief on this issue was: "Q. And was it during the course of speaking to the police on that day that one of them brought to your attention a bruise on the left buttock of the deceased? A. Yes. Q. And you had a discussion with Detective Cole, one of the police officers, in relation to that mark? A. Yes. Q. On viewing the photograph showing the mark on the buttock, did you indicate what you thought about a bruise on the buttock? A. I don't think they specifically asked me about the bruise. A bruise is simply a blunt force injury. I think that they specifically asked whether a certain mark within that bruise could represent an injection site. Q. And what did you say? A. I said that it could. Q. And what is your opinion today about that bruise? A. It's the same. Based on the picture, it could represent an injection mark." (T.260.29) "Q. Would you tell the Court is it common for injection sites to cause bruising? A. Fairly common, yes." (T.262.22) "Q. At the time that you conducted the autopsy, did you appreciate the significance of this bruise and the red mark within it, that it might be an injection site? A. I did not. Q. Would you tell the Court, had you appreciated that significance, what would you have done in relation to that bruising and the mark? A. Probably under these circumstances I would have taken a biopsy of the area of the mark and prepared a slide out of it in the hopes of being able to demonstrate that it was, in fact, a track due to an injection. Q. Were you aware, at the time of the autopsy, of any suspicion concerning the injection of insulin? A. No, no, there was nothing at the time of the autopsy to suggest that insulin had been injected and, as I have reviewed my thoughts on this case which occurred some years ago, I am not sure if I knew at that time of the technique of saving the skin for possible analysis of insulin." (T.262.47 - 263.13) "Q. In those circumstances, the death being regarded by investigating police as suspicious, there being no obvious traumatic cause of death, you would conduct your external examination of the body with a view to detecting injuries such as injection sites? A. In all cases we document injuries on the surface of the body and arguably in suspicious cases we document them more thoroughly. For example, we will take pictures of virtually every injury on the surface of the body in a suspicious case with a scale or ruler which we don't always perform on other cases. Q. Now, in respect of the injury that has subsequently been suggested as an injection site in this case, you did the things that you've just mentioned: Took photographs of the injury? A. Yes. Q. You placed a scale beside the injury? A. Yes. Q. You recorded the measurements of the injury? A. I did document the measurements of the injury and they can be rechecked because of the presence of the scale and the diagram. Q. In the course of measuring the injury, you would have closely observed it? A. Yes. Q. And, of course, you did not notice anything that you at the time considered to be an injection site? A. That's correct. Q. The taking of photographs during the course of an autopsy is useful for subsequent review of cases, correct? A. The taking of photographs has multiple uses, including documentation of the findings, increasing the accuracy of us writing the report because we can go back and look at the injury and remeasure it. In addition, I find photographs extremely helpful in that they often show things that you did not appreciate with your eyes and sometimes they don't show the very reason why you took the picture. I am of the belief that you can't have too many photographs and I do take my own set of photographs in addition to those taken by crime scene who attend the autopsy. Q. You've mentioned the uses that photographs may have to the pathologist, but photographs have their limitations too, don't they? A. Yes. Q. By that, I mean as a tool for the pathologist in examining a body, photographs have their limitations relative to the naked eye? A. Yes, if you had to choose one, you would always choose the naked eye over the photograph. Q. And that is because you may, with the naked eye, be able to determine whether an apparent injury is of clinical significance or otherwise? A. Well, any significance. It's just a better way to examine it and, in addition, you can also feel an injury, for example, if you needed to, with a gloved hand, of course. Q. Just on that note, did you make any observation that the injury with which we are concerned - this is the one now suggested to be a possible injection site was raised? A. I did not note it to be raised at the time and it does not appear to be raised in the pictures that we have which are multiple. Q. In the ordinary course, if you'd noticed the contusion or bruising appeared to be swollen, you would have noted that swelling? A. I almost always note if bruises are swollen in my reports. Q. It's possible, isn't it, that the red mark, as it appears in the photographs of the subject injury, might reflect an abrasion? A. Yes, it could reflect an abrasion which is an injury where the surface of the skin is lost. So another word for "abrasion" would be a scrape, where you've lost the surface of the skin. Obviously this would be a very focal, what I would almost call dotted abrasion, but, yes, and that is one of the reasons why I cannot absolutely state that it is a puncture wound. Q. Do abrasions sometimes occur by the same mechanism as a surrounding bruise? A. They're both blunt force injuries as opposed to sharp injuries, and those are the two - those are two of the three main categories, the other one being a laceration or tearing injury. But, yes, both are caused by blunt force injuries and often the two exist together." (T.275.46 - T277.24) "Q. You also mentioned in an answer you gave in your evidence at the Coroner's Court that the mark "seems a little bit bloodless to me"? A. It does, so that is something that I might have said. … Q. Given that you examined the injury closely at the time of your external examination, and given that the injury appears in the photographs to you to be a little bit bloodless, is it possible, do you think, that at the time of the autopsy you looked at it and came to the view that it was of no forensic significance? A. They're all of forensic significance in a suspicious case, and I'm not sure if you're asking this, but certainly if there had been a trickling of blood from that wound, I believe that it would have drawn my attention to it. Q. Is it possible that you looked at it and - that is the red mark itself, not the bruise surrounding it - and concluded that it did not appear to be an injection site? A. I don't recall thinking that. I think that if I'd had any doubts, I would have gone ahead and, as I said, performed a biopsy to be able to examine the tissues underneath the surface of the skin." (T.278.5)
The oral evidence of Professor Duflou on this issue was: "Q. Do you also agree with Dr Irvine that the bruising of the left buttock, which appears to have a small red mark within it, is possibly a needle puncture mark? A. It is possible it may be a needle puncture mark, yes. Q. If you had conducted this post mortem and seen that possible needle puncture mark, what additional steps would you have taken in relation to that? A. It would depend on the circumstances of the case, but specifically in this case an option would be to dissect the area, to cut into the area, see if there was potentially a needle track, and you may do microscopy of that area to try and age the needle track relative to the time of death. You may also try and look for materials within the tissues that might still be there and that could be done either by chemical testing, in a toxicology laboratory, for example; or may be done using a variety of other tests, depending on what you might see under the microscope and what you might suspect." (T.285.15)
Professor Duflou explained that testing for insulin poisoning did not normally take place in a post mortem. "Q. And are there special measures which must be taken to preserve, or to separate blood and preserve blood, in order to suspect exogenous insulin? A. In general terms the best thing to do is to try and separate the blood, in other words, spin it down into its components, that is, serum and red blood cells, to test the serum for insulin. Q. Is that commonly done where insulin is not suspected as a cause of death? A. No, not really. It's quite uncommonly done. Again, it depends on the type of case that you've got before you. I personally would do it very, very infrequently, unless I have a very specific concern, in terms of wanting to do very specific type of biochemical testing down the track, possibly. Q. So, is this the case that, unless the pathologist suspects that insulin might be the cause of death, it's generally not the practice to separate the blood in that way? A. Correct." (T.286.10)
Under cross-examination Professor Duflou was asked some questions about evidence given by him before the Coroner in 2011: "Q. You were asked some questions about the apparent red mark in the vicinity of the bruise on the upper left of the buttock of the deceased? A. Right. Q. And you were asked this question and gave this answer, page 47. You were asked some questions, firstly, about whether or not the appearance of the injury was consistent with a possible needle puncture mark and then you were asked this question: "Q. Are you able to offer, from your experience, an observation, any other possible explanation for that kind of injury? A. Well, it's - it appears to be a central small red mark, which is either an abrasion or a deeper defect surrounding by bruising." CROWN PROSECUTOR: I think the whole answer should be read, your Honour. GARTELMANN: All right. Q. "A needle puncture mark certainly sounds quite reasonable under those circumstances. In terms of something else, yes, it could be a minor injury of some type. Generally a buttocks don't really graze or impact with objects because they tend to be rather soft and giving, but I certainly don't exclude it." Do you accept you gave that evidence? A. Yes, I accept it. Q. It is the case, isn't it, that the red mark seen in the vicinity of the bruising was consistent, in your experience, with an abrasion? A. Certainly could be a small abrasion, yes. Q. Such an abrasion may have occurred through the same mechanism as the bruising? A. Well, effectively blunt force causes an abrasion and causes bruising, yes." (T.289.25 - T.290.11)
On the Crown case it was sufficient that the photographs showed what could be a possible injection site for an intra-muscular injection. The Crown relied upon the evidence of both Dr Irvine and Professor Duflou to that effect.
The defence challenged that proposition on the basis that Dr Irvine was a very experienced forensic pathologist and had conducted at least 4000 autopsies. The defence submitted that it was most unlikely that she would overlook something as important as a possible injection site. The defence relied upon the evidence of Dr Irvine that she had examined the site closely, photographed it and placed a scale next to it. The defence relied upon the evidence of Dr Irvine's preference for the naked eye over a photograph and that the site appeared "a little bloodless". The defence relied upon the alternative explanation that what was depicted was a small abrasion. It could also be an artefact of a post mortem movement of the body. Implicit in the defence submissions is the proposition that had the mark appeared to be an injection site, Dr Irvine would have made a note to that effect.
The points made by the defence are open and arise from the evidence. By way of qualification, however, there is the evidence of Professor Duflou that an abrasion of this type to the buttocks is relatively unusual given the soft and yielding nature of that part of the body. There is also the likelihood from the evidence of Dr Irvine, that she did in fact fail to consider the possibility that one of the bruises on the left buttock could be an injection site. The evidence of Detective Cole concerning his initial conversation with Dr Irvine supports that likelihood (T.88.9, T.88.45 - T.89.11, T.90.1). Moreover, all that Dr Irvine knew was that the death was suspicious. Her attention was not directed to the possibility of an injection being associated with the death.
I am satisfied that this part of the Crown case has been made out, i.e. that the photographs of the bruise on the left buttock of the deceased raise the possibility of there being an injection site at that location. The difficulty in administering insulin
This relates to the Crown submission that the accused either persuaded the deceased to consent to the injection of insulin into her left buttock or he used force to achieve this result. The Crown accepted that it had no direct evidence to support either theory and that the Court would only draw an inference to that effect if the other strands of its case against the accused were made out.
The defence position was that there was no evidence of persuasion and to the extent that there was any evidence of physical compulsion, it was against the Crown position. The defence also submitted that the proposition that the accused persuaded the deceased to willingly submit to an injection was inherently improbable.
Part of the Crown case that the accused forcibly administered an injection to the deceased depended upon tendency evidence. In a pre-trial ruling, I allowed the Crown to rely upon the following tendency. "To inject medication into the left buttock of members of his family, or extended family, without their consent."
The basis for the asserted tendency was said to be a single instance of injecting his mother in law in the left buttock in December 1997 against her will. This occurred while his mother in law was residing with the accused and the deceased before undergoing a medical procedure. Apart from the difficulty in establishing that such a tendency had continued for a period of over 12 years, the evidence adduced at trial was of such poor quality as to be incapable of establishing that the initial incident took place as asserted in the tendency notice.
The relevant evidence came from the deceased's mother, Mrs Randall, (T.202 - T.208) and the deceased's daughter, Mrs Wiggins (T.217 - T.218). It was clear that Mrs Randall had difficulties with her memory and tended to confuse two operations, one to her back and the other to her knees. She described an incident when the accused had approached her from behind, twisted her right arm behind her back and forcibly injected her once or twice in the buttocks. She said that she felt woozy after the injection and fell over and struck her head on the concrete floor. There was a confrontation between her, the accused and the deceased in which the deceased took the side of the accused.
When the detail of the incident was tested, it emerged that at the time Mrs Randall suffered from schizophrenia which was being treated by a medication called "Modecate". This was administered by way of injection. The deceased was the person who used to administer those injections. Under further testing, it emerged that at or about the time of the occasion relied upon by the Crown, Mrs Randall had fallen to the floor because of dizziness and had been helped to her feet by the accused. Later when giving evidence about that incident, Mrs Randall was not sure whether she fell over or was pushed.
When the whole of Mrs Randall's evidence is looked at, its unreliability is such that I could not be satisfied that she had a genuine recollection of a particular incident and was not confusing a number of different incidents, particularly when it was the deceased who was regularly administering the injections of Modecate.
The evidence of Mrs Wiggins was hearsay based upon what she had been told by Mrs Randall. It depended largely upon the reliability of Mrs Randall as an historian which, as I have indicated, was problematic.
It follows that I am not satisfied that the incident described by Mrs Randall occurred in the way in which she says it did and consequently the Crown has failed to establish the tendency upon which it sought to rely in relation to this issue.
Leaving that matter aside, the Crown submitted that the physical injuries described in the autopsy report and observed by the attending police officers were consistent with an insulin injection being forcibly administered.
The evidence on this issue comes from Dr Irvine and from Professor Duflou. In oral evidence Dr Irvine said: "Q. If the recipient of an injection is moving, perhaps even struggling, so that there's movement at the time that the injection is in a buttock, is it more likely to cause bruising? A. I think it's possible, but no one has actually looked into that. I think that there are many factors. If a person is struggling, it seems logical that there would be more disruption of blood vessels because the needle is actually moving with respect to the tissue. That being said, sometimes when there are injections, there is just a large amount of bleeding and I don't know if that's the technique of the person. Certainly people may have an increased propensity to bleed as well." (T.262.36) "Q. Have a look at these copies (shown to witness). Do those photographs show a broken acrylic fingernail on one hand and the complete set on the other hand? A. Yes, they do. Q. In your view, was there any potential significance in the broken fingernail? A. We always examine fingernails because they may represent defence injuries. All I can say in this case is that it is a broken fingernail. Q. Is that consistent with being a defence injury? A. It could possibly be a defence injury. I'm very careful about the term "consistent with" because I'm not sure what other people think it means." (T.269.13) "Q. You said in your initial report there was no sign of a struggle for life, correct? A. Yes. Q. The injuries that I have just mentioned, that is, the bruising to the back of the arm, abrasion to the chin, the contusion to the back of the head, did not cause you to consider that there had been some struggle? A. I'm sorry, strike? Q. Struggle? A. Struggle. No. Just to qualify that answer, the injury to the back of the head and the chin and on the soft tissue of the neck might have been consistent with the position in which she was found. Injuries on the neck, as I say, are always of a concern to us, and not just the neck, but around the neck, including the chin. Q. Yes? A. That being said, I did not find any evidence that neck compression, for example, had occurred, and I also did not see an excess of injuries beyond what I would see in a non-suspicious case, and I did not see any injuries that I would consider to represent possible defence type injuries which would be likely to be on your arms and hands." (T.279.47 - T.280.18)
Professor Duflou in his report (page 7) said in relation to the injuries found at post mortem: "There is bruising to the right arm, which could be described as "fingertip"' bruising. Such bruising is certainly seen in cases where a person is forcefully grabbed by the arm, leaving bruise imprints of the finger tips on the skin. However, it can also be seen in cases where there has been no violence to the body prior to death, and I suspect these marks are not uncommonly present in bodies where there has been some difficulty in extracting the body from a location. I note the deceased was located in a somewhat awkward position in the bedroom. No mention is made of bruising by the crime scene officer, and I am unable to see the bruising in the photographs of the body in situ. I therefore conclude it is possible that this bruising may be the result of the deceased being removed from where she was found, after death. With reference to the bruising on the hand, it should be noted that this is almost certainly old, having occurred possibly days prior to death. I am unable to comment on the broken fingernail, except to indicate that some force has to be applied to break a nail."
In his oral evidence Professor Duflou said: "Q. Do you agree that a reasonable possibility as to the infliction of the injuries to the head is the deceased rolling off the bed, striking her head on the bedside chest of drawers, and/or the bed frame, before coming to be in that position? A. Yes. Q. Dr Irvine noted some contusions to the rear of the upper arm, an upper arm of the deceased? A. Yes. Q. A reasonable possibility as to the infliction of those injuries is post mortem movement of the body of the deceased? A. Yes, in my view that's entirely possible and an injury which is not uncommonly seen. Q. Do you agree with Dr Irvine's view expressed in her report that the blunt force trauma of injuries to the deceased do not indicate a struggle? A. Well, the injuries are not typical of interpersonal violence, I agree." (T.290.48 - T.291.15)
The crime scene officer's observations and photographs of the bedroom and other portions of the house did not show signs of a struggle. For there to have been a fatal insulin injection administered by force, not only would there be a need to forcibly inject the deceased but she would need to be restrained until the onset of a hypoglycaemic coma, i.e. a period of some hours.
I have concluded that it is unlikely that the deceased was forcibly injected with insulin.
The defence submitted that it was inherently implausible that the accused would have been able to persuade the deceased to allow him to inject her with insulin. The defence relied upon the evidence from family members to the effect that she was angry, suspicious and untrusting of the accused. She was a former registered nurse and therefore had a knowledge of medications and how they were administered. She was an experienced consumer of medications and it would be unlikely that she would allow the accused to inject her with an unknown substance. The defence relied upon the deceased's familiarity with medications as shown by her regular requests of the accused for medications and as shown in the text messages between them (Exhibit 4). The defence relied upon the absence of evidence of the deceased attempting to call for help, notwithstanding that if she had been injected with insulin, she would have experienced distressing symptoms for some time before the onset of a hypoglycaemic coma.
There is considerable force in the submissions of the defence on this issue. That having been said, a full examination of the text messages in Exhibit 4 showed the deceased trying out different medications with the accused asking the deceased how effective those medications were. Despite their domestic difficulties, it is clear from what family members said that even when he was absent at night the accused used to deliver to the deceased the medications which she required. The resolution of this issue will depend upon whether the Crown has been successful in making out the other strands of its circumstantial case. Detection of insulin
It was the Crown case that the deceased chose the New Year holiday to commit the charged offence because he believed that this would delay the deceased's autopsy and because he had a mistaken belief that insulin was undetectable. The defence submitted that this submission was not borne out by the evidence in that at the time, regardless of holidays, autopsies were carried out the day following notification of death. There was a significant body of evidence that insulin could be detected in blood up to 48 hours after death and that blood taken three days later might still provide useful information. The defence submitted that it was implausible that the accused would have made the triple-0 call at 8.44am on 1 January 2010 if he had injected the deceased with a lethal dose of insulin. This was because there was a simple and effective way for him to ensure that the insulin would be less likely to be detected and that was to wait until his return from work later on 1 January 2010 before contacting police.
The submissions of the defence assume knowledge on the part of the accused of the procedures followed by the Coroner and a greater knowledge of the detectability of insulin than he may have possessed. The internet searches carried out by the accused, if they have the effect argued for by the Crown, would have provided a basic level of information about insulin to the accused and suggest an imperfect knowledge on his part concerning insulin. There is also no basis for the conclusion that the accused had a knowledge of coronial procedures and that autopsies would usually be carried out the day following notification of death. It may well be that the accused, despite being a doctor, had the sort of knowledge of insulin popular in crime fiction as described by Professor Marks.
This issue like that relating to how an injection could have been given to the deceased is really dependent upon the success of the Crown in making out the other strands of its case. The resolution of these issues relies upon inferences, both on the part of the Crown and the defence, which depend on other facts being established. Alternative causes of death
The Crown accepted that even though the defence did not rely upon suicide as a cause of death, it needed to be excluded as a rational explanation for the deceased's death as did positional asphyxiation. Suicide
Although the deceased appears to have gone through a period when she was depressed in about July/August of 2009, by December she was busy making plans with various members of her family for the New Year. The evidence of her daughter, Mrs Wiggins, was: "Q. Did you speak to her about plans for the following week? A. Yes. So, for Christmas my mum and Brian had bought us a lovely table cloth and mum was always one to want to look after things so we were talking about going to Clark Rubber and getting some plastic to go over the top of that. She was excited about going to see my sister, Kayleen, who then lived in Forster. She was going to be asking my brother Stuart for the Navman to have it back so she could get up there. She was also excited about Uncle Phil who was coming down from Tweed Heads to stay. Yeah, she liked doing that." (T.212.31)
The evidence of Mrs Wiggins' husband, John Wiggins, was: "Q. What did you speak about? A. Oh, I just asked her about what she was doing in the new year, that sort of stuff. Q. What did she say? A. You know, she mentioned that she had a few things to look forward to and she talked particularly about Kayleen and Philip and she was looking forward to catching up with them. Q. Specifically, in relation to Kayleen, what was she looking forward to? A. Oh, I think she was just - I think Kayleen might have been coming down to Sydney. I think they were wanting to catch up. Might have been a bit of shopping; something like that too. Q. You had known her for some time as at the time of that phone call? A. Yes. Q. How did you assess her demeanour during that phone call? A. Oh, I think she was a bit up beat about what was coming up. She was looking forward to catching up with both of them. Philip had moved to Tweed Heads, I think, a few years before, so she didn't see him that after, I guess, so she was very much looking forward to that too. So, yes, she was up beat in the conversation that we had." (T.224.5)
Her daughter, Kayleen Riley, gave evidence as follows: "Q. In December - A. Yes. Q. What was her mood like? A. Her mood was busy, active. She was very busy, going different places, she went to Melbourne at the beginning of December and her mood was just her regular mood. She's a very active person. Q. Did you speak to her in December - A. Yep. Q. about any plans for the new year? A. Yes, I did. She had plans starting 2 January to see all her very - her favourite people, all the people in her family that whole week, so she had a plan to see my brother on Saturday, 2 January, and then -- Q. Then Stuart? A. My brother, Stuart, yes. And also her mum that same week, her - my sister, for a shopping trip; her brother Graham she told me was coming over to fix the fence and I - she was coming to visit me on 11 January, and also that week before the 11th - that first week of January, she had her brother Philip coming over to stay at her place on his way home from Perth. Q. Where did you live at this time? A. I lived in Forster, New South Wales. Q. What date was it planned that she'd come to visit you? A. 11 January." (T.227.20) "Q. So, on 30 December, you spoke to her. What did she say to you during that phone call? Did she say something about Brian during that phone call? A. Yes, on the 30th, she did, yep. She said, "It's - being around him is like walking on egg shells. He's so sensitive." That's what she said about Brian. Q. Did she say anything else in relation to leaving Brian? A. Yes, she said, "I could leave Brian and meet a nice man at church or Bible study." Q. And how was her mood during that phone call? A. Excited to come visit me, happy, up beat, unsure of her living conditions at the time. She felt unsure of where she was living with Brian." (T.228.21)
In a later conversation with Kayleen, the deceased planned to make a reservation at a motel - Bella Villa at Forster. On that occasion, she told Kayleen about how she had gone on a shopping spree and bought three dresses at a bargain price. Kayleen particularly noticed that she was not talking about the accused as she had in the past but was talking much more positively about things that she was going to do.
These plans were confirmed by reference to the gold diary found in her handbag (Exhibit P) as well as the calendar found on the kitchen bench (Exhibit N). A couple of days before her death, the deceased saw her brother Graham Randall, after she had called him around to fix the side gate. She discussed with him her future plans in relation to concreting one of the investment properties which she owned with the accused.
Stuart Riley returned from overseas on 27 or 28 December 2009 and had an arrangement to see the deceased, his mother, on New Years Day to return a GPS (Navman) he had borrowed from her. On 31 December 2009 just hours before her death, the deceased confirmed her plans for January with her brother Philip. At about 6.20pm on 31 December 2009 the deceased texted Philip about fires near where he lived in Perth and asked him "What day are you coming here?". Philip responded that all was okay and that he would be "in Sydney on the 4th and will be in Campbelltown at 0900, see you then".
Inquiries of the Bella Villa Motel in Forster confirmed that the deceased had rung and made a booking which she paid for with a credit card for 11 January for one night.
The only evidence concerning suicide came from the accused in his ERISPs and from a close friend of the deceased, Cheryl Ball. The accused's evidence was that on some occasions when he was talking about leaving, the deceased said that she was thinking of taking some pills but he did not think that she would do a thing like that "It's not her, you know" (Exhibit F, Q.301). Later, he reiterated "I don't think she would do it" (Exhibit F, Q.303).
The accused said that her oldest daughter thought the deceased had taken tablets but he said that after being with her for 21 years, "I don't believe she would do that" (Exhibit G, Q.197). The accused said that the deceased had a pile of tablets but she did not take them "I know that she's told me many times if you know, that she would rather die if I died you know, she wouldn't want to keep living, she just wouldn't, but I don't, I don't believe she would" (Exhibit G, Q.201).
Cheryl Ball was a good friend of the deceased. Her evidence was: "Q. You then said, "I think she was saying goodbye", or something to that effect. What did you mean by that? A. Well, I think she was very depressed all the time and she used to tell me everything, what happened, and she told me that she was going to end her life. Q. When did she tell you that? A. When did she say it? Q. Yes, when did she tell you that? A. Oh, we used to go out together a lot and she would tell me everything and she said -- Q. Can you give me a month that she said this to you? A. It's been years. All I know what she said, she said, "I'm going to kill myself and nobody will ever know how I did it", and she was a nurse at one stage." (T.250.42 - T.251.6)
Under cross-examination Ms Ball said: "Q. And you said that you thought that she'd taken her own life and you gave evidence about a conversation that you had with her at some stage? A. Yes. Q. Do you remember saying that? A. Yes. She was so depressed. Q. Please, just listen to my question and answer only my question. Would you have a look at your statement, please? Do you have it in front of you? Do you see paragraph 16? A. Paragraph? Q. 16? A. 16. Q. Could you read that to yourself? A. Yes. (Witness complied.) Yes. Q. Did you tell the police, "In my opinion I believe that Christine took her own life. Christine did say to me on at least two occasions in July 2009 that 'I feel like killing myself.'" A. That's right. Q. Was that the truth? A. That's true." (T.253.38 - T.254.12) "Q. Is it the truth that she said it on at least two occasions in July 2009? A. Yes. Q. Is it the truth that those are the only occasions when she said things like that to you? A. Yes. Q. So that, as at the time of her death, is it correct to say this. Can I take you to paragraph 8, third line, talking about 24 December 2009, "Christine was in the best spirits that I had seen her for a long time"? A. That's right. Q. Was that the truth? A. Yes." (T.254.29)
An examination of Exhibit BP which is a summary of the text messages between the deceased and Ms Ball over some months shows that the actual text message sent by the deceased to her sometime after 4.43pm and before 4.56pm on 31 December 2009 was: "Ok luv ya xxxx"
The message was sent in response to a sequence of messages between the two that afternoon about plans for the night. Eventually Ms Ball advised that she was a little tired and it was agreed that they would get together at another time. It was then that the deceased texted the message to which reference has been made.
Taken in its full context it is clear that this last text by the deceased expressing her love could not be given the meaning that Ms Ball ascribed to it. That was the way that they usually signed off conversations with each other. This was the manner in which they regularly texted each other - with an affectionate and loving tone.
Taking the whole of that evidence into account, I have concluded that while it is possible that the deceased took her own life, it is most unlikely. This is particularly so given the detailed planning which the deceased had given to her activities with her family during January 2010. Positional asphyxiation
The Crown submitted that the proposition that the deceased died from positional asphyxiation was fanciful and contrary to the weight of evidence.
The defence submitted that while it did not carry any onus of establishing an alternative cause of death, death by positional asphyxiation remained a reasonable alternative explanation for the deceased's death and was just as likely to have occurred as insulin poisoning.
Dr Irvine in her amended autopsy report of 23 February 2011 (Exhibit AG) said at p 4: "The position of the body is also unusual; while it does not appear that there was a component of position asphyxia, it was admittedly an awkward position, for which there is no obvious explanation, even if one accepts that death ensued precipitously. Haemorrhage within the structures of the neck is always a concerning finding during post mortem examination, and is not satisfactorily explained by the position in which the body was allegedly initially found."
Dr Irvine's oral evidence on this issue was: "Q. In relation to the injury that you found underneath her chin, in effect, are you able to say anything about that injury and the position in which her body was found? A. It may be that that injury was related in the position in which her body was found because it appeared that her chin might have been up against the side surface of the bedside table. In general, any injuries that we find on, within or around the neck are a bit concerning to us." (T.269.38) "Q. In relation to the position that her body was found in, have you expressed the view that it is very unlikely that her position was such that it would have compromised her breathing? A. I described it as an awkward position and I have examined the photographs thoroughly. I can see no evidence that her neck is either compressed or kinked, which raises the issue as to whether her outer airways, meaning her mouth and her nose, are covered. But it appears from the photograph that the mouth and nose area are neither pressed flat against the side of the bedside table, nor pressed flat against the floor of the bedroom which, in any case, was covered with carpet. So, while I cannot entirely exclude the possibility, I do think that it's unlikely that this represents a positional asphyxia. Q. Have you expressed the view that it is very unlikely to be positional asphyxia? A. I don't know if I ever said "very unlikely". I say today that it is unlikely for the reasons that I have discussed. Q. When you gave evidence before the Coroner in May of 2011, you were asked this question - page 25 - by Mr McClintock? "Q. Sorry, Dr Irvine, I'm a bit confused. I thought you said that when you reviewed, you didn't think her position was such that it would have compromised her breathing? A. I think it's very unlikely. I cannot say that with absolute certainty." A. So it's very unlikely, but I cannot say it with absolute certainty." (T.269.49 - T.270.38)
In cross-examination Dr Irvine said: "Q. You mentioned in the course of your answer that the injuries I've asked you about were consistent or could be consistent with the position in which the deceased was found, correct? A. Yes, in terms of the injuries to the head and neck, yes. Q. The injuries to the head and neck could have been inflicted in the deceased rolling off the bed, striking her head on the bedside chest of drawers and/or the bed frame before coming to be in the position where she was found? A. Yes, that is what I mean in terms of consistent with the position in which she was found, but I don't wish to sound like I'm saying that's how they occurred because I can't; they are simply blunt force injuries and I cannot tell you how they occurred." (T.280.20) "Q. Does the term "mechanical asphyxia" refer to any physical interference with breathing and/or circulation of a person? A. Yes, a mechanical usually refers to, for example, a heavy weight on top of the chest; or, possibly, compression of the neck. Q. Is there a term used in this context known as "wedging"? Perhaps that question was clumsy. I will withdraw that and put it another way. A. No, it is a term that is used but I'm not exactly sure what it means. Wedging to me would be - and I've seen a case of a person who fell back between a washing machine and the wall, so they were wedged, their whole body was wedged, but it is also a form of mechanical asphyxia because they couldn't breathe. There is overlap in the terms. Q. Wedging means some interposition of the face or neck or possibly chest of a person between two structures? A. That seems like a reasonable description." (T.281.24) "Q. Are cases of positional asphyxia idiosyncratic? A. First of all, let's define "positional asphyxia", which is an inability to breathe effectively, based on the position of the body itself. Q. Yes. A. So the classic example would be a person who is severely intoxicated and falls over, but falls into a position where their head is tucked in tightly to their chest and their head is kind of underneath them. So, in that case, they have difficulty breathing, not only because of the position of the neck, but because their airways are kind of tucked into their own body. So, positional asphyxia, meaning it's the position of the body itself. The problem - apart from the terminology with the different forms of asphyxias we have seen - is that they tend to be fairly unusual situations. And so how can you compare all the different situations? People who are wedged? People who have a heavy object across their chest or neck; people who have fallen forward with their head tucked underneath? How do we compare all of these situations in terms of the findings. And I think that's what you mean by "idiosyncratic"." (T.282.1) "Q. As a forensic pathologist, a difficulty in ascertaining whether positional asphyxia occurred is that, generally speaking, you're not present at the scene where the deceased was found and you're reliant upon photographs? A. Yes." (T.282.34) "Q. The photographs that you saw depicted the deceased's head in a forward and downward and perhaps slightly to the left position? A. Yes, it did. Q. Flexion of the neck in a forward and downward position may compromise the upper airway of a person? A. Yes, but that does not depict the neck in a flexed position. Q. It depicts the head in a forward and downward position, correct? A. No, the head appears to be turned slightly toward the left but, to my eye, when I looked at that picture it was not bent forward with the chin approaching the chest. Q. Can I show you again exhibit H, photograph 30 in particular, of exhibit H (shown to witness)? A. Thank you. Q. That appears to be the best photograph we have of the position of the head of the deceased. Would you agree that it's a little bit difficult to determine the angle of the neck in that photograph? A. I'm not sure what you mean by "the angle of the neck". Q. Yes. Do you agree that it's difficult to determine how far forward and downward that the head is in relation to the body on that photograph? A. I'm sorry, I'm not sure what you're asking. The face is turned toward the left with the right cheek against the flat side of the bedside table, but the neck itself does not seem to be bent forward and it does not appear that her chin is touching her chest. HIS HONOUR Q. So you don't think it depicts a positional asphyxiation? A. Not an obvious one, your Honour. It could be. Q. Possible? A. And, if it is, I think it's more likely because the outer airways, the mouth and the nose, are against a flat surface rendering it difficult to breathe, as opposed to a flexion or bending forward of the neck sharply against the chest. GARTELMANN Q. I see. A consideration in drawing a conclusion of positional asphyxia as the cause of death will inevitably be why a person did not or could not extricate themselves from the position? A. That's correct." (T.300.12 - T.301.6) "Q. As a consequence of, for example, concussion? A. Yes, unconsciousness may result from concussion which is not a condition that we can identify at autopsy. Q. I think in evidence before lunch I put to you a proposition the deceased may have rolled off the bed and struck her head on the bedside chest of drawers and/or the bed frame and you agreed with the observations that blunt force trauma to the head were consistent with that proposition? A. Yes, that the wounds could have been caused by that hypothetical chain of events. Q. And that hypothetical chain of events may have resulted in concussion? A. Yes, in theory, yes." (T.301.18) "Q. If you assume the deceased was not habituated to Lorazepam, is it possible that a dosage consistent with therapeutic use might have a significant effect? A. All people may be sensitive to medications and all people may have tolerance to medications. Certainly people who use increasing doses of medications over a long time are likely to develop tolerance to the effects that they can feel. That being said, those are things that I cannot assess at autopsy, particularly being sensitive to a drug. Obviously, I take into consideration that certain populations, such as individuals in palliative care, individuals given regular large doses of methadone, are likely to have significant tolerance, at least to opiate type medications. Q. Lorazepam is a central nervous system depressant? A. It is a benzodiazepine class of medication that is usually prescribed for anxiety or its soporific effects to relax you and induce sleep. As such, yes, it is a central nervous system depressant." (T.302.19) "Q. Drugs with a sedative effect may have a contribution to positional asphyxia in two ways, would you agree with that? A. You'll have to explain what the two ways are. Q. Firstly, in impairing the capacity of a person to extricate themselves from a situation where their breathing may be compromised? A. It's possible. Q. Secondly, in tending to depress respiratory activity? A. Yes, that's possible as well. Q. Is it possible there may be a third way in which drugs with a sedative effect may have a contribution insofar as they may tend to cause a person's muscles to relax? A. Yes. I'm not quite sure how that relates, though. Oh, actually, yes, I can see now in terms of like the muscles around the airways, for example, and controlling the airways. So, yes, that is a possibility as well. Q. One such organ perhaps being the tongue? A. Correct. Q. Ultimately, you'd agree with Dr Duflou that it is a possibility that positional asphyxia was the cause of death in this case? A. Not the entire cause of death, but it is a possibility. As you said, we need to have a reason why a person could not extricate themselves and continue to breathe effectively. Q. Would you agree that concussion and/or sedation with drugs and/or alcohol, combined with positional asphyxia, is a possible cause of death in this case? A. Yes, but I would add that possible sedation with a possible concussion could have led to possible positional asphyxia." (T.303.7)
In re-examination Dr Irvine said: "Q. Doctor, you were asked many questions by my learned friend about positional asphyxiation? A. Yes. Q. In your amended report at page 4 you say this: "The position of the body is also unusual. While it does not appear that there was a component of positional asphyxia, it was admittedly an awkward position for which there is no obvious explanation even if one accepts that death ensued precipitously." Is that still your view? A. Yes, "does not appear" would be on level with my "it's possible". They are both low probability in terms of likelihood. Q. And is this what you were trying to convey: That there was nothing that you saw that supported death by positional asphyxia? A. Well, not nothing because, as I say, it's admittedly an awkward position. So it's difficult to assess. Q. Nothing about the body at autopsy? A. Nothing about the body itself, although one could argue that the absence of findings might -- Q. Just answer my question, please. Was there anything about the body that you found that would support positional asphyxia? A. As I said, the absence of findings might support positional asphyxia. Q. Was there any positive findings supporting positional asphyxia? A. No, not that I saw." (T.307.19) "Q. Does positional asphyxia sometimes result in signs that are evident on autopsy? A. Yes. Q. Does that include petechiae in the eyes? A. It may. Q. Does it include petechiae in the lungs and airways? A. Not particularly the lungs and the airways. We would be concerned about petechiae on the facial skin or the mucosa, which is the lining of the mouth. Q. Are petechiae, either on the eyes or the face, common signs of positional asphyxiation? A. It depends on the type of position and it depends on the type of, yeah, the type of positional asphyxia. Q. Is positional asphyxia due to the position of the head relative to the body? A. No, it's asphyxia relating to the position of the body itself. So, for example, if your face is flush against a surface and you cannot breathe through your mouth or your nose, that may cause a positional asphyxia, but that might not be associated with petechial haemorrhages. If you're turned upside down, you might also develop a positional asphyxia and that may involve petechiae which may be dependent on gravity. Likewise, if you have a mechanical asphyxia with an object against your chest rendering you unable to move your chest cage, you would probably get petechial haemorrhages above the level of that weight. So, they are not universal. I would - depending on the circumstances, I would expect to find them. Q. When you gave evidence at the inquest at page 25, you were asked about positional asphyxiation such that it would have compromised her breathing and you said: "I think it's very unlikely. I cannot say that with absolute certainty." Is that still your view? A. I'm sorry, is that regarding the positional asphyxia? Q. Yes. A. Yes. I still think it's very unlikely. It is, however, possible." (T.308.11)
Professor Duflou gave evidence on this subject. He did so in his report, Exhibit AK, at the coronial inquest in 2011, in these proceedings audio-visually on 1 November 2016 and in person when recalled on 7 November 2016.
In his report (p 7) he said: "8.3. Are you able to make any observations regarding the position in which Mrs Crickitt was found? The head of the deceased is located between the bed and the bedside cabinet, with the face applied to the side of the cabinet. The remainder of the body is in a right lateral to prone position. The photographs of the deceased taken shortly after she has been moved from that position show pallor on the right side of the face, consistent with her face in compressive contact with the bedside cabinet. Other post mortem lividity changes are similarly consistent with the position the deceased was found in. In my opinion, it would not be unreasonable to opine that the deceased has rolled off her bed, and in some way landed in a position similar to the one in which she was found. If this is indeed the case, it could reasonably explain the abrasion to the chin and bruising to the sternocleidomastoid muscle and back of the head. It would also be possible, but in my view relatively unlikely for a person to have suffered positional asphyxia in that position. However, if the deceased was substantially stunned or unconscious either before or after the posited rolling off the bed, then it is reasonably possible for the deceased to have compromised her airway as a consequence, and to have ultimately asphyxiated. It is also possible for the deceased to have been concussed and lost consciousness as a result of her head impacting with the bed and/or cabinet during the fall/roll - such an event would not be expected to show pathological changes at autopsy. It should be noted that this does not exclude the possibility of the deceased having been incapacitated in some way, including for example through the administration of a drug parenterally in the buttock, prior to her rolling off the bed. I also do not exclude the possibility that this rolling was assisted in some way by another person."
On 1 November 2016 in this trial Professor Duflou gave the following evidence in chief: "Q. Doctor, is this the case, that you agree with the opinion of Dr Rebecca Irvine that there was no cause of death that could be found for Christine Crickitt? A. Yes, correct." (T.308.41) "Q. And among those photographs was a photograph that depicted the head of the deceased this is down beside the bed and a bedside chest of drawers? A. Yes. Q. Do you agree that a reasonable possibility as to the infliction of the injuries to the head is the deceased rolling off the bed, striking her head on the bedside chest of drawers, and/or the bed frame, before coming to be in that position? A. Yes." (T.290.44) "Q. Lorazepam in a person not habituated to the drug can have a very sedating effect? A. It certainly can. … Q. Lorazepam is similarly a central nervous system depressant? A. Yes, it is. Q. The effect of a combination of medications with central nervous system depressant effect can be additive? A. Yes, it certainly can be. Q. The effect of Lorazepam on an unhabituated person, who had also consumed other central nervous system depressants, such as Citalopram and Olanzapine, could be unpredictable? A. It certainly can be unpredictable, so its effect can be anything from very mild sedation only to quite profound sedation. Q. It's not unreasonable to consider that a person who had consumed Citalopram and Olanzapine and Lorazepam, but who was not experienced with the latter, may have become quite sedated? A. It's a possibility, yes. Q. And it's not unreasonable to consider that, in those circumstances, that person might roll off a bed? A. It's possible that the person may be less coordinated and less able to prevent themselves from falling than otherwise would be the case, yes. Q. I want to ask you some questions now about the concept of "positional asphyxia"; do you understand that? A. Yes, I do. Q. Do you agree that, as a general proposition, that, on autopsy, there may be few external signs to indicate or confirm positional asphyxia has occurred? A. Yes, on occasion you see very little at all. Q. Facial petechiae may be present, but may not be present in cases of positional asphyxia? A. Yes, that's correct. Petechial haemorrhages or pinpoint areas of bleeding are more often than not present on the face and within the whites of the eyes in such cases, but there certainly are cases that I have been involved in where none are visible whatsoever. Q. Positional asphyxia is a concept that describes a number of ways in which the position of a deceased may have compromised breathing; is that right? A. Yes, look, in the end the problem with all cases of positional asphyxia is that there is compromising of breathing in some way or other and the person is, for some reason or other, unable to get out of the position in which they have landed in for whatever reason, and it continues to cause asphyxia or an inability to breathe sufficiently to sustain life. Q. One reason why a person may be unable to extricate him or herself from a position compromising breathing may be concussion? A. Certainly. Q. Concussion is not something a forensic pathologist can expect to confirm on autopsy; is that correct? A. Look, that's correct. In general, what you look for is evidence of a blow to the head of some type or other, and if there has been a blow to the head, then concussion becomes a possibility; but at autopsy itself, when you look at the brain, even using the microscope or any number of other tests you might want to do, you will not see damage to the brain tissue itself, unless there's been very severe concussion and there has been very prolonged survival. Q. Another reason why a person may be unable to extricate him or herself from a position where breathing is compromised may be the effects of drugs and/or alcohol, correct? A. Yes, correct. Probably the most common cause of death due to positional asphyxia is a person who is intoxicated in some way by drugs and/or alcohol who lands up in a position from which they are unable to extricate themselves from. Q. Drugs and/or alcohol may contribute to death by positional asphyxia in two ways; do you agree with that? A. Yes, they can. Q. Firstly, because, as you just mentioned, the deceased may be unable to extricate himself or herself from the position they came to be in, correct? A. Yes, correct. Q. But, secondly, because drugs, particularly central nervous system depressant drugs, and alcohol may cause muscles to relax? A. Yes, and - well, they could have two specific areas of effect on the ability to breathe, firstly, yes, by relaxation of muscles; and secondly, by having an actual central nervous system effect where the brain itself becomes less responsive to oxygen requirements. So, you might be breathing less and your brain simply doesn't tell your body to breathe harder. Q. Affectation with central nervous system drugs and alcohol, combined with concussion, would increase the difficulty a person might experience in extricating him or herself from a position where breathing was compromised? A. It could, yes. Q. A position where breathing is compromised may include where there is flexion of the neck such that the chin is towards the chest or on the chest? A. It can be, yes." (T.291.29 - T.293.26) "Q. Now, the photographs you've seen taken by crime scene officers, depicting the position of the deceased where she was found after her death, showed the neck in a position of flexion, that is, the head in a downward or forward position relative to the body; would you agree with that? A. Yes, I accept that. Q. I take it, doctor, you have copies of the photographs there with you; is that right? A. No, I don't, actually. I've just got descriptions in my report, but I haven't been provided with photographs and don't have them on me. Q. But you have seen photographs of the position of the deceased previously? A. Yes, I have. Q. And do you recall that the head of the deceased was found in a position where the right side of her face was pressing against the bedside chest of drawers? A. Yes, correct. Q. Do you accept that the effect of that would have been to exert force on the head of the deceased in a leftward direction? A. It appears to be the case, yes. Q. It cannot be excluded, can it, that the position in which the deceased was found, with her neck forward and downward, and forced to a degree to the left, may have compromised her breathing? A. Oh, it may, yes. I can't exclude that." (T.293.44 - T.294.21) "Q. Pulmonary oedema is a finding that may be consistent with many causes of death; is that right? A. Oh, certainly can be, yes, absolutely. Q. But one such cause of death with which it may be consistent is positional asphyxia? A. Yes, you can see it in asphyxia in general and positional asphyxia specifically as well." (T./294.39) "Q. Now, appreciating that you do not have before you photographs of the deceased taken at the crime scene, do you have a recollection of those photographs now? A. Only in the very vaguest form. I certainly would not like to make comment in terms of intensity of lividity and similar based on memory. I just cannot recall them to that extent." (T.295.17)
In re-examination Professor Duflou said: "Q. Doctor, in your report you have considered the possibility of positional asphyxia of this deceased, haven't you? A. Yes, I have. Q. At the bottom of page 7 and the top of page 8? A. Yes. Q. At the bottom of page 7 you say, "It would also be possible, but in my view relatively unlikely, for a person to have suffered positional asphyxia in that position." GARTELMANN: Please go on. CROWN PROSECUTOR Q. You see that? A. Yes, I do. Q. Then you say: "However, if the deceased was substantially stunned or unconscious, either before or after the posited rolling off the bed, then it is reasonably possible for the deceased to have compromised her airways as a consequence and to have ultimately asphyxiated. It is also possible for the deceased to have been concussed and lost consciousness as a result of her head impacting with the bed and/or cabinet during the fall/roll - such an event would not be expected to show pathological changes at autopsy." Now, why, in your view, is it relatively unlikely for a person to have suffered positional asphyxia in the position that this deceased was? A. I think it becomes a matter of are there other reasonable possibilities? So, if there is an outright obvious other cause of death, well, then, yes, positional asphyxia would go very low down on the list of likelihood. On the other hand, if following every investigation in the book, no other cause is found, then you'll end up with, effectively, in this case as the default position of positional asphyxia. …" (T.296.4) "Q. Doctor, I don't think you've answered my question. You say in your report, "It would be possible, but in my view relatively unlikely, for a person to have suffered positional asphyxia in that position", that is, the position of this deceased. Why do you say that it's "relatively unlikely" for her to have suffered positional asphyxia in that position? A. Because I think most people who land up rolling off the bed in some way land up standing up and not being much the worse for wear. I think it's fair to say that many people have rolled off their bed at some time or other. You don't find hundreds of dead people lying next to their beds with no other obvious cause of death. Q. When you came to that conclusion, had you seen the photographs of the deceased as she was originally found? A. Yes. Q. You've discussed, during your cross examination by my learned friend, various signs that can become apparent of asphyxiation. You mentioned, for instance, petechiae in the eyes? A. Yes. Q. In cases of asphyxia, is that commonly a sign? A. It depends on the type of asphyxia, but in positional asphyxia, yes, it is commonly seen. Q. And there was no petechiae in the eyes of this deceased? A. No, none were described and I'm confident that, if there were, Dr Irvine would have described them. Q. I don't think you were asked about petechiae in the lungs and the other airways. Is that a common sign of asphyxiation? A. Again, it depends on the type of asphyxiation. You can certainly see petechial haemorrhages over the surface of the lungs and over the surfaces of the heart as an example. Q. In positional asphyxia? A. You can see them in positional asphyxia, yes. Q. And were there any such signs in this case? A. No, none were described and, again, I would expect them to have been described if they were present. Q. Positional asphyxia you've described as being something that generally occurs when somebody is sufficiently inebriated or affected by drugs or alcohol so that they're unable to correct their position in order to breathe? A. Well, that is one of the reasons, yes, certainly. Q. In this case are you able to say anything about the level of drugs that was found in the blood of the deceased and whether, in your view, they were at a sufficiently high level to suggest that she would have been incapacitated from being able to move, so that she could breathe? A. Not from being able to move that she could breathe, but she could certainly have had a level of impairment, especially if she was not used to taking the benzodiazepine; that's Lorazepam." (T.296.48 - T.297.50) "Q. If she commonly took those drugs, what would your view be? A. If they were commonly taken in the form of over prolonged periods of time, so not one a week, as an example, then you could very easily become accustomed to the effects of those drugs and they would be less obvious. Q. Is this the case: That Dr Irvine has not listed positional asphyxia as a cause of death? A. Well, she has given no cause of death. Q. Is this the case: That she did not even consider -- A. Sorry, she does consider positional asphyxia, saying that the position is unusual, but that there does not appear to be a component of positional asphyxia. Q. And do you agree with that opinion? A. Well, it's possible that it may have been, but I agree that it's not the obvious cause of death that I would consider at the time." (T.298.17)
When recalled on 7 November, Professor Duflou gave evidence as follows: "Q. I'll show you two photographs (shown). For my friend's benefit, these are crime scene photograph number 32 of 60 and autopsy photograph number 266208. Are those the two photographs I showed you a short time ago this morning? A. Yes, they are. Q. Dealing, firstly, with the photograph taken at the crime scene, do you see evident lividity? A. Yes, I do. Q. At the time that I showed you that photograph this morning, did you make a comment about the face of the deceased? A. Yes, it really looks quite suffused, in other words, quite intensely purplish in colour. Q. Is that of any relevance to the proposition that positional asphyxia may have been a cause of death in this case? A. Well, I think it's still very much worth considering as a reasonable possibility, yes." (T.412.33) "Q. And for the record this is number 30 of 60 [in Exhibit H]. In the course of my showing you the photographs that have just been tendered this morning, did you also see the photograph which you have before you now? A. Yes. Q. And did you express an opinion in relation to that? A. Yes, 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." (T.414.8) "Q. Doctor, you were shown all the photographs from the crime scene and autopsy prior to writing your report dated 22 March 2011? A. I don't know if I was shown all of them. I was shown, as I have written here, various photographs. Q. The ones that you have been shown today in court, you were shown those ones? A. I think that's very likely, yes. Q. And the conclusion that you came to was this, was it not, and I am referring to page 7 at point 9 of your report: "It would also be possible, but in my view relatively unlikely for a person to have suffered positional asphyxia in that position." A. Mm, I did write that, yes. Q. Are you still of that opinion? A. Yes, look, relatively speaking, if there was no pronounced incapacitation, it would be likely that you could get out of that position, if conscious. So, on that basis, yes." (T.414.31) "Q. I'm sorry, do you recall being asked about positional asphyxiation when you gave evidence from New Zealand? A. Yes, I do. Q. Do you remember saying this in answer to questions by me: "Q. Is this the case: That Dr Irvine has not listed positional asphyxia as a cause of death? A. Well, she's given no cause of death. Q. Is this the case: That she did not even consider - A. Sorry, she does consider positional asphyxia saying that the position is unusual, but that there does not appear to be a component of positional asphyxia. Q. Do you agree with that opinion? A. Well, it's possible that it may have been, but I agree that it's not the obvious cause of death that I would consider at the time." That is the evidence you gave from New Zealand? A. Yes. Q. Are you still of that view? A. Yes, I think, relatively speaking, positional asphyxia would be lower down the list." (T.415.18)
The Crown submitted that positional asphyxia was not a reasonable possibility as a cause of the deceased's death. The Crown based this submission on the preponderance of the evidence which it identified as follows: 1. The evidence of the forensic pathologists - Dr Irvine being of the opinion that "It's very unlikely but I cannot say with absolute certainty" and Professor Duflou in his report "It would be possible but in my view relatively unlikely for a person to have suffered positional asphyxia in that position". 2. In order to die from positional asphyxiation the deceased must have been so incapacitated that she was unable to turn her head to the side in order to breathe. This required such a high level of incapacitation that one must ask what could have created such a condition? 3. The last exchange of SMS messages was at 7.36pm on 31 December and there did not appear to be any sign of incapacity at that time. 4. According to the accused's ERISPs, the deceased consumed dinner and they watched a movie together which was inconsistent with incapacity at that time causing positional asphyxiation. 5. The toxicology report showed only low therapeutic doses of the four drugs that were in her body. The Crown submitted that there was no suggestion that these played a direct role in her death and it was so unlikely that such low doses would cause gross incapacity that the Court would reject it. 6. According to what the accused said in the ERISPs, he and the deceased had an argument at about 1am or 2am which is inconsistent with the sort of gross incapacitation that would result in positional asphyxiation. In that regard, the Crown noted that in accordance with its case theory, the deceased was already comatose or dead by that time.
The defence noted that Dr Irvine conceded that death from positional asphyxiation was possible. It relied upon the opinions of Professor Duflou, particularly his qualification that if the deceased were substantially stunned or unconscious before or after rolling off the bed, then it was reasonably possible for her to have compromised her airways and to have been ultimately asphyxiated. The defence noted that the fact of concussion would not show pathological changes on autopsy. The defence particularly relied upon the later evidence of Professor Duflou on 7 November when by reference to photographs which he had seen that morning, he commented that the deceased's body looked in a more confined position than he had recalled and reinforced his concern that this could be a death due to positional asphyxia or a wedging type of death.
The defence also had regard to Professor Duflou's evidence that lividity in the face could be more pronounced in asphyxia deaths and his later evidence on 7 November that the deceased's face in a photograph taken at the crime scene appeared to be "quite suffused" and "intensely purplish" in colour. When asked about the relevance of this in relation to positional asphyxia he said "I think it's still very much worth considering as a reasonable possibility, yes".
The defence relied upon the presence of Lorazepam in the deceased's body and the evidence of toxicologists that even though only a low therapeutic dose was present, this did not indicate the amount of the dose which was originally consumed. The defence relied upon the evidence of Professor Duflou that Lorazepam could have a very sedating effect on a person not habituated to it, and its effect when combined with the other drugs which the deceased was taking was unknown.
The defence relied upon the evidence of Professor Duflou that the combination of these drugs might contribute to positional asphyxia in several ways - they could affect a person's ability to extricate themselves from the position, they could have the effect of relaxing the muscles and they might make the brain less responsive to oxygen requirements. The defence noted that Dr Irvine agreed that sedative drugs could contribute to positional asphyxia in that way.
The defence relied upon the evidence of Dr Gerostamoulos, a toxicologist, that adverse effects of Lorazepam could include sedation, dizziness, weakness and unsteadiness and could affect motor co-ordination and the ability to stand normally. He said that even a therapeutic dose of Lorazepam could cause such effects. The defence relied upon his evidence that it was difficult to determine the dosage of Lorazepam from the post mortem blood concentration because there might have been a high concentration some 12 hours previously, the equivalent to a two or four milligram dose. The defence noted that there was no evidence that the deceased was an experienced user of Lorazepam. The defence put forward the theory that it was reasonable to consider that Lorazepam, in conjunction with the other drugs which the deceased was taking, might have contributed to the occurrence of positional asphyxia in a number of ways - first, sedation of the deceased such that she might have rolled off the bed; second, impairing her capacity to extricate herself from a position where breathing was comprised; and thirdly, impairing her respiratory function. The defence submitted that positional asphyxiation remained a reasonable hypothesis available to the defence, i.e. that the cause of death was positional asphyxiation secondary to the effects of medication and/or concussion as a consequence of trauma to the head from striking the bedside table.
I have some reservations about the evidence of Professor Duflou given on 7 November. That evidence involved a change of position in two respects from that set out in his report and from the evidence which he gave in New Zealand. That change in position appears to have been triggered by the fact that he was shown three photographs before he gave that evidence.
It is apparent from that when he prepared his report, he had those photographs available to him and it can be inferred that he had looked at them when doing so. In that report, he substantially agreed with the opinion of Dr Irvine. Apart from the fact that he had not seen these photographs for some time, there was no explanation for why he was prepared to express one opinion in his report and a somewhat different opinion on 7 November. This was highlighted by the cross-examination at T.414 and T.415 where he conceded that the lividity shown on the photographs is "fixed lividity" consistent with the position of the body.
On this issue, from the point of view of the opinion of the forensic pathologists, I prefer the evidence of Dr Irvine. She clearly studied the photographs in considerable detail and under cross-examination was able to point to specific features of them which supported her opinion that positional asphyxiation was "very unlikely but possible".
This largely provides an answer to the defence proposition that a reasonable hypothesis for the cause of the deceased's death was positional asphyxia secondary to the effects of the medication and/or concussion. This is because an important component of positional asphyxiation is not only an inability to remove oneself from an awkward position, but that one's capacity to breathe has been very seriously compromised. Dr Irvine's analysis of the photographs concluded that this was not the case because of the position of the face, the neck and the presence of carpet beneath the face which would still enable breathing to take place, rather than the face being forced against a hard and unyielding surface.
In relation to the combined effect of the various medications found to have been consumed by the deceased, it is clear from the admissions of the accused that all except Lorazepam had been prescribed for her by the accused and had been prescribed for her over a considerable period of time. As was properly conceded by the defence, it is not known for how long the deceased had taken Lorazepam. In that regard, it should be noted that the accused appears to have gained possession of the tablets in about April 2009 when they were handed over by the patient for whom they were originally prescribed, Mrs Dimovski. It is, of course, not known when those tablets were made available to the deceased.
For those reasons, I have concluded that positional asphyxiation was a very unlikely cause of death but remained a possible cause. It should be kept in mind, however, that both forensic pathologists agreed that the cause of death was undetermined. Their evidence was that an inability to determine a cause of death occurred in a small but significant number of cases: 5% according to Professor Duflou and 2.5% according to Dr Irvine. The Kristina Mitchell prescription
It was agreed by the parties that this was a central element in the Crown case. It was part of the matrix of evidence which the Crown submitted established beyond reasonable doubt that the accused had improperly obtained a supply of insulin on 31 December 2009. Put bluntly, unless this issue was established beyond reasonable doubt in the Crown case, there was no real connection between insulin and the death of the deceased.
It was the Crown position that once Mrs Mitchell left the CMDC shortly after 3.12pm on 31 December 2009, she had no further contact with the accused so that his actions thereafter were motivated solely by his desire to gain access to insulin for the purpose of killing the deceased.
The defence position was that although the accused had issued the prescription in the name of Mrs Mitchell and had signed it both as the issuing doctor and the agent/patient, there was strong evidence that he did so at the request of Mrs Mitchell and there was strong evidence that Mrs Mitchell had received the 25 NovoRapid FlexPens referred to on the prescription.
The evidence relevant to this issue is relatively confined.
Dr Borkman, an endocrinologist, had been treating Mrs Mitchell for almost 28 years. In November 2009 the dose of NovoRapid FlexPen prescribed by him for Mrs Mitchell was 48 units per day, being 16 units administered three times per day before meals. There is no suggestion that the dose changed in 2010. Mrs Mitchell used to see him every six months.
His evidence was: "Q. All right. When you saw her in November 2009, did you give her the usual prescription of five packets of five pens of NovoRapid? A. I did. That was on 5 August 2009. Q. And would you also give her a repeat prescription? A. There was a repeat with that as well. Q. The records disclosed that that repeat was filled on 25 November 2009? A. Yes. Q. Based upon the 48 units per day, would you tell the Court how long one of those scripts would last for? A. Okay, so that's approximately 50 units a day, each pen had 300 units, you would offer some discarding of the remains, so five days per pen, 25 pens, 125 days, four months." (T.118.6) "Q. Very well. My question, I'll bear the consequences. What did you want to add, doctor? A. You don't have to use the pen. You can actually draw up the contents of the pen into a syringe. … Q. Could you indicate to us how you would do that and I will provide you with one of the pens (handed to witness)? A. You get a standard -- Q. This pen has a needle on it? A. You get a standard 5 ml syringe and a needle and there's a rubber stopper in the end of the pen and you just push the needle into the rubber and suck out your whatever, your full amount if you like. It's a standard thing we do when people use syringes and they've only got a pen cartridge, they suck it out that way. So you don't have to physically use the pen to administer the insulin." (T.121.20)
Mrs Mitchell gave evidence that Dr Crickitt was her principal general practitioner, whom she had been seeing for about five years. She had followed him when he moved practices. In 2009 she used to attend him at the CMDC. Mrs Mitchell suffered from diabetes, as well as a number of other medical complaints. She used to obtain prescriptions for insulin from Dr Borkman and from Dr Crickitt if the prescriptions from Dr Borkman ran out.
On 31 December 2009, Mrs Mitchell attended the CMDC and after a two and a half hour wait, saw Dr Crickitt at 3.12pm. The consultation appears to have been very brief and it can be inferred that the attendance was primarily for the purpose of obtaining prescriptions for her ailments. Included in those prescriptions issued by Dr Crickitt was one for Lantus SoloSTAR, which was the slow acting insulin which Mrs Mitchell used to take at night. At 3.36pm she attended the Priceline Pharmacy at Macarthur Square and had the prescriptions given to her by Dr Crickitt filled. This included the prescription for Lantus SoloSTAR.
Mrs Mitchell was shown the prescription (Exhibit V) which was issued in her name for NovoRapid on 31 December 2009. She denied that the signature on it, where the patient or agent had to sign, was her signature. She denied that she had attended the pharmacy at the CMDC and had that prescription filled on that day. Her evidence was: "Q. Mrs Mitchell, can you recall any occasion when you would go to the medical centre, the Campbelltown medical centre, and pick up a script for insulin from the reception desk? A. No. Q. Was there ever an occasion that you rang up that practice and asked for a script for insulin from Dr Crickitt? A. No. Q. Was there ever an occasion when you asked Dr Crickitt to pick up a script on your behalf from the chemist in that practice? A. No." (T.100.7) "Q. When you went to see Dr Borkman, you'd get a script for both generally? A. Yes. Q. When you went to see your general practitioner, would you usually get a script for both? A. Sometimes I would and other times I wouldn't. It depends on how many I have at home. Q. When you got your scripts for insulin would you typically get a script that you'd fill shortly thereafter but also one repeat? A. Yes. Q. And would that be the case in respect of both types of insulin? A. That I can't remember. Q. But when you got a script or scripts for both kinds of insulin, would you usually fill them together? A. Usually I would. Q. By that I mean you'd fill them on the same day at the same place? A. Yes." (T.103.29) "Q. In late 2009, was your dosage of NovoRapid 48 units per day? A. Probably. Q. Now, do you understand a NovoRapid pen to contain 300 units? A. Sorry? Q. Do you understand a NovoRapid pen to contain 300 units of insulin? A. Yes. Q. So, one pen would last you several days? A. It would. Q. And towards the end of that period might there be a bit left in a pen but not enough for a full dose? A. Sometimes I use what's left and then start another one. If there's only a small amount I just squeeze it into the garbage and so there's nothing for someone else to come across." (T.104.4) "Q. All right. Did you sometimes go back to the doctor, whether it was with the general practitioner or the specialist Dr Borkman, within a few weeks for A. No, I - about five months it would last, the 25 packets - 25 tubes, and then I'd go back to one of them if it was before Dr Borkman's appointment. I saw him every six months. Q. Your dosage changed over time though, didn't it? A. Oh, yes, it's increased so much. Q. It's increased a lot, has it? A. Yes. Q. But were there times when your dosage was higher than others and so you'd get through a pack of NovoRapid more quickly? A. Yes. Q. And you might go back to see the doctor in a period less than five months, perhaps three or three and a half months? A. Could be, yes." (T.104.35 - T.105.3) "Q. And I'm sorry to ask this, but it's the case, isn't it, that you were on the pension at that time? A. Yes. Q. No doubt the cost of all of the medications you needed to take added up? A. It did. Q. But it's the case, isn't it, that you had an entitlement under the Pharmaceutical Benefits Scheme for some of your medications to be paid for by the Government? A. Yes, I reached the safety net very quickly. Q. The safety net was or required you to pay for the first 60 medications in a calendar year? A. Yes, it used to go up every year, the amount I paid for and the number of scripts I needed to qualify for the safety net. Q. I see. But was there a certain number of scripts each year, once you got past that, you'd get them for free? A. That's right. Q. And you said that you'd reached that point very quickly? A. Yes. Q. So in the earlier part of the year typically? A. Yes. Q. So in late 2009 you'd expect that you'd be getting your medications covered by the safety net? A. That's right. Q. In other words, you wouldn't be paying for them? A. No. Q. And that would include your insulin? A. Yes." (T.105.29 - T.106.14) "Q. Were there occasions when you might have a telephone conversation with Dr Crickitt? A. Never. Q. I want to suggest to you that, just to take an example, when Dr Crickitt was in his own practice before the Campbelltown Medical and Dental Centre - A. Right. Q. - there was an occasion when you rang him to say that you'd lost your script for NovoRapid from Dr Borkman? A. No, because I know he wouldn't be able to write it out for me. Q. Why's that? A. Because you have to consult the doctor before he writes out a script. Q. All right. I'm suggesting that that happened on an occasion in 2003 when Dr Crickitt was in his private practice? By that I mean not at the Campbelltown Medical and Dental Centre? A. It might have happened because my son and my brother have on occasions picked scripts up when I haven't been able to do it myself. Q. So on those occasions you might telephone the doctor, tell him you need a script and then your son or your brother would go in and collect it? A. I either had a script but I wouldn't have rung to ask for a script. Q. On those occasions when you had someone go and get a script from the doctor, like your son or your brother, how would your doctor know that you needed the script? A. He'd - I'd assumed that he's looked at my record and said I was due for a refill." (T.107.1) "Q. Were there occasions when you sometimes had scripts filled at both pharmacies on the same day? A. I doubt that very much. Q. Okay. Is it possible that that might have happened? A. I don't think so because the packaging is quite large and I don't have enough room in my fridge to store 20 packs of insulin. Q. Yes? A. If I only have a packet left, then I'd have it refilled to get me over the New Year period." (T.107.49 - T.108.9) "Q. But you had a number of medications that you needed at this period - A. Yes. Q. - of your life, and it must have been hard sometimes to keep track of what you needed and what you had in stock? A. I used to keep a copy of the repeats at home and once a fortnight I'd go through them and see what I needed and I'd have a look on the shelf where I kept the medication. Q. When you went to see the doctor at the Campbelltown Medical and Dental Centre - A. Yes. Q. - would you usually try and get scripts for all of your medicines that you thought you might need in the near future? A. The ones I would need close to the time." (T.108.44 - T.109.9) "Q. Mrs Mitchell, can you remember that day now or are you basing your answers to questions about what happened on that day on documents you've seen? A. I'm answering them as to how my behaviour is doing certain things. Q. Your usual practices? A. They're my usual - like if I was down on my medication, there's another one, but if I've used the last repeat, then I ask for a new one, and then I'd put all the scripts in for - to be filled. Q. What I'm really asking you is whether or not you can now remember what happened on 31 December 2009 or whether you are relying on the documents that you've seen to tell us about? A. I'm relying on my habits. Q. Yes, I understand, all right? A. I used to take advantage of the safety net before 31 December. Q. That's really what I was getting at. You went to the Campbelltown Medical and Dental Centre on that day? A. Yes. Q. You'd expect as part of your usual practice in order to get all of the medications that you foresaw that you'd need in the near future - A. Yes. Q. - filled on that day because you'd get them for free? A. Yes." (T.109.45 - T.110.22) "Q. Is it possible that you got home on that day and realised that you'd got all of your medicines that you needed except the NovoRapid FlexPens? A. It's a package that high (indicating) and it has to be refrigerated. Q. Yes. Is it possible that you got home and realised that you didn't have much in your fridge? A. I don't think so." (T.111.1) [In the course of her evidence Mrs Mitchell indicated the size of a package of NovoRapid when supplied in accordance with the prescription (T.111.3). My observation was that the height indicated was 20cms.] "Q. Is it possible that you got home on that day and realised that you'd got all of your medicines that you needed except the NovoRapid FlexPen? A. I don't think so. I would have probably waited another week or so. Q. If you were getting low on NovoRapid on that day, it would have been a good idea to - A. It would have been a good idea. Q. That's because you would have got it for free? A. Yes. Q. In that case, is it possible that you might have called Dr Crickitt and asked for a script for NovoRapid? A. No. The practice didn't allow to ring for a script to be picked up. Q. What makes you say that? A. Well, I found that across all doctors' practices that I've ever been to. Q. So that's something you're saying about practices in general rather than that one specifically? A. In general." (T.112.6) "Q. Okay. That's all right. If you can't remember, that's fine, you just say so. On 25 November 2009 you had the repeat scripts for NovoRapid and Lantus SoloSTAR that Dr Borkman had given you on 5 August filled? A. Mm. Q. Does that sound about right? A. It does. Q. So it's a period of about three and a half months after you were given the original scripts from Dr Borkman? A. Yes. Q. Then about two weeks before you had the repeat scripts filled, on 10 November 2009 you saw Dr Crickitt? A. Probably. … HIS HONOUR Q. Rather than say "probably", do you have any memory at all? A. No. Q. If you can't remember, say so? A. Thank you. GARTELMANN Q. What I want to suggest to you, Mrs Mitchell, is that on that day Dr Crickitt gave you another script for NovoRapid pens? A. I can't remember. Q. Perhaps I can ask you this: Was there an occasion at around this time when Dr Crickitt gave you a script for NovoRapid pens that you did not get filled for some reason? A. I can't remember that either. Q. Were there occasions though when you might have misplaced a script and - A. - later discovered it? Q. Yes? A. I've done that once or twice. Q. All right. Did you like to make sure that you always had a spare script for your insulin medications? A. Yes." (T.113.6 - T.114.2) "Q. You've mentioned already that on some occasions you would have other people collect scripts for you? A. Only on two occasions. Q. It was only the two, was it? A. Yes. Q. It's not possible that it was more than two? A. No, because I was in hospital with one and my brother came - was visiting and he had to go to the pharmacy, so I gave him one of my scripts because I had two teeth extracted, so I needed the antibiotics. Q. You referred there to your brother and your son collecting scripts for you? A. Yes. Q. Is it possible anyone else collected scripts for you? A. No. Q. All right. Well, is it possible that either your brother or your son collected scripts on more than one occasion each? A. No. Q. You're saying that, I take it, because that's what your memory tells you? A. Yes." (T.114.11) "Q. Mrs Mitchell, I want to suggest to you that on 31 December 2009, after seeing Dr Crickitt, going to the Priceline Pharmacy, at some stage you went home, realised you could do with some more NovoRapid and you rang the Campbelltown Medical and Dental Centre practice to arrange for another script? A. No." (T.114.50 - T.115.5) "Q. Mrs Mitchell, I want you to accept from me that on 25 November 2009 you filled a prescription which you'd obtained from Dr Borkman for five packets of five pens of NovoRapid at the Priceline Pharmacy at Macarthur Square? A. Correct. Q. You told the Court that normally that would last you about five months? A. At that stage my insulin intake could have been higher, so I'd be going through them a bit faster." (T.115.11)
Mrs Mitchell's brother, Mr Galantis, gave evidence that his signature was not on Exhibit V (the NovoRapid script for Mrs Mitchell, dated 31 December 2009) where it says "Patient/Agent". He had no memory of ever picking up a prescription for Mrs Mitchell.
Her son, David Mitchell, gave the following evidence. "Q. Have there been any occasions when you have obtained medication from a pharmacy for your mother? A. Yes. Q. Do you remember what the reason was that you were required to get that medication for her? A. The times I've done it, mum's either been in hospital or sick. She's had a prescription and I've gone and got it filled. Q. Do you recall which pharmacies you went to to fill those prescriptions? A. David Wilson, chemist, was the main one and it wasn't until August 11, 2012, that I went to Priceline. Q. Are those the only two pharmacies that you've filled prescriptions for your mother? A. Correct. Q. Have you ever filled a prescription for your mother at the pharmacy within the Campbelltown Medical and Dental Centre? A. No. Q. Have you ever filled any prescriptions for your mother for insulin? A. No. Q. Would you have a look, please, at this prescription, exhibit V (shown to witness). Can you see the signature at the bottom of the page? A. I do. Q. Is that your signature? A. No." (T.123.12)
Under cross-examination he thought that he had only collected medication for Mrs Mitchell on three occasions. When he was taken to his police statement, dated 14 August 2012, he gave this evidence: "Q. Can I just take you to the first page of that, paragraph 3. Does the third sentence read: "I believe it has only been five occasions where I have collected medication for her." A. I would be more inclined to go with five as it was closer to the day." (T.124.15)
I should at this stage make some observations about the evidence of Mrs Mitchell and her son, David Mitchell. I found them to be truthful witnesses who were doing their best to give evidence accurately. The only possible issue with their evidence is its reliability which I will deal with in due course.
There is no issue between the parties that a NovoRapid prescription for Mrs Mitchell dated 31 December 2009 (Exhibit V) was printed and signed by the accused at 5.01pm, about an hour and three quarters after he had seen Mrs Mitchell. The issuing of the prescription was done on his computer, using his login details, in his room at the CMDC. There is no issue that between 6pm and 7pm on 31 December 2009 the prescription was presented at the pharmacy of the CMDC and filled. There is no issue that not only did the accused sign the prescription as the issuing doctor but also as the patient/agent. Not only was this admitted by the accused in his Statement of Admissions but the handwriting expert identified similarities between that signature and that of the accused. It is apparent when one looks at the signatures on the prescription that they are both of the accused. The contrary was not submitted by the accused.
The pharmacist who filled the prescription, Ms Binyamin, was unable to remember who presented the prescription. It was not her responsibility to check the accuracy of the signature on the agent/patient part of the prescription. This was a function of another member of the pharmacy staff who was dealing directly with the person who had presented the prescription. It was not unusual for a doctor from the practice to present a prescription for either himself or herself or their family. The accused used to do so in respect of the deceased's medications. On occasions a doctor would present a prescription on behalf of a patient.
A summary of the Pharmaceutical Benefits Scheme (PBS) records for Mrs Mitchell's NovoRapid FlexPen prescriptions was before the Court (Exhibit BU). This showed the following: 1. She was first issued a script and a repeat on 5 August 2009. The script was filled on 5 August 2009 and the repeat was filled on 25 November 2009, approximately three months and three weeks later. 2. She was issued a script on 10 November 2009 but it was never filled. 3. Leaving aside the 31 December 2009 prescription, she was next issued a script on 20 May 2010 which was filled on that date, approximately six months and one week after 25 November 2009. 4. A repeat script was next filled on 30 November 2010, six months later.
The prescription was created at approximately 5.01pm on 31 December 2009. This was at a time when according to the MedTech 32 records, the accused was seeing another patient, Brett Jackson. It was part of the MedTech 32 system that when a consultation with a patient commenced, the "in consult" button would be pressed. The accused activated the "in consult" button at 4.58pm. The "in consult" button was activated for the next patient at 5.16pm. Accordingly, the NovoRapid prescription for Mrs Mitchell appears to have been created while Dr Crickitt was in consultation with Mr Jackson.
The deactivation of the NovoRapid prescription for Mrs Mitchell is closely related to the creation of the prescription and should be considered as part of the surrounding circumstances. The deactivation of the prescription took place over a period of about two minutes while Dr Crickitt was in consultation with Mr Jackson. There was no dispute that when the prescription was first deactivated, the reason given for the deactivation was "wrong". The prescription was then almost immediately reactivated and deactivated a second time with the reason given as "not needed". There was no issue that this deactivation and reactivation and deactivation again, was carried out by the accused.
The Crown relied upon the evidence of Mrs Mitchell to establish that she did not see or speak to the accused after her consultation with him in the afternoon. She denied arranging for anyone to pick up a prescription for NovoRapid, nor did she herself, and she did not arrange for anyone to have that prescription filled at the CMDC pharmacy, nor did she do so herself. The Crown submitted that that evidence, together with the undoubted fact that the accused had issued the prescription, signed it and that someone had presented it at the CMDC pharmacy conclusively established that the only person who could have done so was the accused. The Crown argued that the accused's reason for doing so could only have been for a reason other than legitimately providing NovoRapid to Kristina Mitchell or any other patient.
The defence submitted that Mrs Mitchell's memory was not particularly good and that her evidence was based on her usual practice, rather than on an actual recollection. The defence relied on Mrs Mitchell's usual pattern of behaviour and in particular, her usual practice of taking advantage of the PBS Safety Net before 31 December each year. She did this by getting all the medications she foresaw she would need in the near future because she would get them for free. The defence noted that there was no issue that on 31 December 2009 Mrs Mitchell obtained prescriptions for four different medications and had them all filled that day.
The defence placed considerable weight on the evidence of Dr Borkman as to how long a NovoRapid prescription would last - four months - and the effect of the PBS records of Mrs Mitchell's NovoRapid prescriptions (Exhibit BU). The defence submitted that if Mrs Mitchell did not receive the 31 December 2009 NovoRapid prescription and have it filled, she would not have been able to fulfil her insulin needs. This was because there was a period of six months and one week between 25 November 2009 and 20 May 2010, being the period between the filling of NovoRapid prescriptions, on the Crown case. The defence submitted that this evidence provided powerful support for the proposition that Mrs Mitchell must have received the 31 December 2009 prescription and had it filled.
The defence submitted that the fact that there was another six month period between the filling of the NovoRapid script on 30 May 2010 and the filling of the repeat on 30 November 2010 did not invalidate its submission. It pointed out that if Mrs Mitchell had scripts filled on 25 November 2009, 31 December 2009, 30 May 2010 and 30 November 2010 there was a total of three scripts in the 12 months period from 25 November 2009 which was consistent with Dr Borkman's evidence.
The defence submitted that Mrs Mitchell's interest in obtaining prescriptions and having them filled before she would have to pay for them in the New Year, explained the irregularity in the pattern of filling scripts. The defence submitted that the inability of Mrs Mitchell to meet her insulin needs without the filling of the 31 December 2009 NovoRapid prescription was of itself sufficient to raise a reasonable doubt that the accused obtained insulin for his own use through creating and filling that prescription. Put another way, the defence submitted that to find beyond doubt that the accused obtained insulin through creating and filling the prescription, there would have to be evidence that Mrs Mitchell met her insulin needs with another prescription.
The defence submitted that the evidence confirmed that the script was created during a consultation between the accused and another patient. This was consistent with the accused having received notification that Mrs Mitchell wanted a prescription for NovoRapid or alternatively, having been contacted by her to that effect. The defence submitted that this provided an explanation for why the accused may have been distracted and had to deactivate and reactivate the prescription and why he may have mistakenly signed the script on both the doctor and patient/agent fields. This was in a context where there were many occasions when the accused would obtain medications for himself or his wife and would have signed both on the doctor and the patient/agent lines. The defence submitted that he may have inadvertently done so on this occasion.
Ms Spooner, a casual medical receptionist at the CMDC, gave evidence that there were occasions when doctors, including the accused, would leave prescriptions for patients at reception and that there were occasions when patients would ring the reception at the CMDC and say that they had forgotten to get a script from a doctor. If the doctor was in consultation with another patient, then the receptionist would either ring through to the doctor's room or take a message to that effect. She said that there was a little box at reception for prescriptions.
The weight given to the rough estimate by Dr Borkman of how long a NovoRapid prescription would last is not justified. The operation of the NovoRapid FlexPen device (Exhibit AC) is simple and allows for considerable accuracy in measuring dosage. The prescription for Mrs Mitchell required such precision because it involved 16 units being administered three times per day. In those circumstances, the wastage rate allowed for by Dr Borkman appears to be excessive. Using a similar general approach to that of Dr Borkman it could equally be said that a careful user of the NovoRapid FlexPen, who was on a regime of 48 units per day, should be able to obtain six days of insulin per pen. This would mean that 25 pens would provide enough NovoRapid insulin for 150 days, i.e. five months. It would also allow for some small amount of wastage, i.e. 12 units per pen.
The important evidence is not Dr Borkman's very general estimate of how long a prescription might last but the evidence of Mrs Mitchell on that subject. As I understood her evidence, she was careful in using the NovoRapid FlexPens and her assessment was that a prescription would last five months. Mrs Mitchell gave this evidence: "Q. And towards the end of that period might there be a bit left in a pen but not enough for a full dose? A. Sometimes I use what's left and then start another one. If there's only a small amount I just squeeze it into the garbage and so there's nothing for someone else to come across." (T.104.16) "Q. All right. Did you sometimes go back to the doctor, whether it was with the general practitioner or the specialist Dr Borkman, within a few weeks for - A. No, I - about five months it would last, the 25 packets - 25 tubes, and then I'd go back to one of them if it was before Dr Borkman's appointment. I saw him every six months." (T.104.35)
An important aspect of this evidence of Mrs Mitchell is that it was not put to her in leading form but was volunteered by her. I infer from this evidence that she was careful and not wasteful in her use of NovoRapid FlexPens and that normally a prescription would last five months when administered in that way. That conclusion is not adversely affected by her evidence that on occasions her insulin intake could have been higher so that a prescription might not last five months (T.115.17). This is because we know from Dr Borkman what her usage was at this time, i.e. 48 units per day which would last for 150 days if carefully administered. It can also be inferred that because she was on a pension and would be paying for her insulin until the Safety Net was reached, Mrs Mitchell would have been careful not to waste insulin.
Mrs Mitchell was not cross-examined on her statement that a NovoRapid FlexPen prescription would last five months. The only challenge was that referred to above, that on occasions the dosage of NovoRapid might have been greater than 48 units. No timeframe was ever put to Mrs Mitchell. When one looks at the cross-examination (T.104.41 - T.105.3) it is expressed in terms of what had happened up until the time when Mrs Mitchell was giving evidence. Not surprisingly, Mrs Mitchell, who has been a diabetic for a long time, agreed that over the years the amount of insulin which she has had to take has increased. The only clear evidence on the issue, however, is that of Dr Borkman that as of November 2009 the amount of NovoRapid prescribed for Mrs Mitchell was 48 units per day. There is no evidence of any increase in that regime during 2010.
That evidence significantly reduces the effect of the defence's reliance upon the PBS records. If NovoRapid prescriptions could last approximately five months, that fits neatly with the third prescription for NovoRapid FlexPens being filled on 20 May 2010 and the fourth prescription on 30 November 2010, i.e. fifteen months after she first started using NovoRapid.
On that approach, having had a prescription for NovoRapid filled on 25 November 2009, there would have been no pressing need for Mrs Mitchell to obtain another prescription on 31 December 2009. She had already obtained a five months supply on 25 November 2009. That analysis also fits with Mrs Mitchell's evidence that NovoRapid boxes were bulky and presented storage problems because they had to be kept in a refrigerator (T.108.4 and T.111.1). Those storage difficulties would also explain why Mrs Mitchell would wait until the NovoRapid had been substantially used before having a new or repeat prescription filled. This is consistent with Mrs Mitchell filling the repeat prescription for NovoRapid on 25 November 2009 and also with her doing so a little earlier than usual because she wished to take advantage of the Safety Net before the end of the year.
I have concluded that it is most unlikely that Mrs Mitchell telephoned the accused and asked him to issue a further prescription to her for NovoRapid on 31 December 2009. This is because Mrs Mitchell had it firmly in her mind (whether correct or not) that doctors would not write a prescription for her unless she personally consulted the doctor. This was made clear on two occasions in her evidence (T.107.10 - 15 and T.112.16 - .26). If Mrs Mitchell had that belief, it is most unlikely that she would have telephoned the accused and requested a prescription for NovoRapid.
The defence submitted that in the course of cross-examination Mrs Mitchell had conceded that this might have happened. I do not read the evidence in that way. When read in context, the concession made by Mrs Mitchell is rather different. The relevant evidence is: "Q. All right. I'm suggesting that that happened on an occasion in 2003 when Dr Crickitt was in his private practice? By that I mean not at the Campbelltown Medical and Dental Centre? A. It might have happened because my son and my brother have on occasions picked scripts up when I haven't been able to do it myself. Q. So on those occasions you might telephone the doctor, tell him you need a script and then your son or your brother would go in and collect it? A. I either had a script but I wouldn't have rung to ask for a script." (T.107.17 - .25)" (T.107.17 - .25)
Whatever Mrs Mitchell meant by "it might have happened", she was not accepting that she might have rung the accused to ask for a script. That is clear from her final response.
Another difficulty with the defence's reliance upon the PBS records, as raising a doubt concerning the NovoRapid prescription of 31 December 2009, is the six month gap between 20 May and 30 November 2010. While it is true that if one looks at a 12 month period from 25 November 2009 and one inserts the filling of a NovoRapid prescription on 31 December 2009 one does have three prescriptions filled during a period which accords with Dr Borkman's estimate. The actual dates when the prescriptions were filled sit uneasily with that analysis, if one relies only upon the prescriptions which we know were certainly filled on behalf of Mrs Mitchell. The six month period 20 May to 30 November 2010 remains unexplained.
The defence approach fails to explain how Mrs Mitchell came into possession of the NovoRapid insulin so as to be able to fill the prescription on 31 December 2009. She denied going back to the CMDC on 31 December 2009. The only other candidates, her brother and son, also denied such an attendance. Although Mrs Mitchell conceded that in relation to a number of events on 31 December 2009 she was relying upon her usual practice rather than on an actual memory, it is inherently improbable that if she had telephoned the accused and then attended the CMDC to have the prescription filled, she would not have remembered such an unusual event.
Although Mrs Mitchell had some difficulty remembering precise dates when various prescriptions were issued to her, I found her to be generally reliable. For example, when describing the circumstances in which either her brother or her son had a prescription filled for her, she said that this had occurred only when she was in hospital or sick. While Mrs Mitchell may have been incorrect in her recollection of the number of times this occurred, e.g. five rather than two according to her son, she was accurate as to the circumstances in which that occurred. Her evidence on that issue accorded fully with that of her son. I found Mrs Mitchell to be a careful witness who was prepared to indicate when she had no direct recollection of events but was relying upon her usual practice. I found her son to be reliable in his evidence. He was prepared to make concessions when appropriate, as was clear when he accepted that his recollection of events would have been better when he made his police statement than at trial.
Given her strong belief that it was not possible to telephone a doctor and arrange for that doctor to issue a prescription without a personal attendance, and given the denial by her, her brother and son of any visit to the CMDC pharmacy on the late afternoon or evening of 31 December 2009, I am satisfied beyond reasonable doubt that Mrs Mitchell did not arrange for a further prescription to be issued in her favour by the accused for NovoRapid FlexPen. I am also satisfied beyond reasonable doubt that she did not, either herself or through her son and brother, arrange for such a prescription to be filled on that evening.
Dr Borkman's estimate of how long a NovoRapid prescription would last and the PBS summary of prescriptions for NovoRapid filled in favour of Mrs Mitchell, do not cause me to have a reasonable doubt on that issue. On the contrary, the evidence of Mrs Mitchell generally and her evidence of such a prescription lasting five months provide a complete answer and fit neatly into the PBS summary if one ignores the prescription for NovoRapid which was filled on 31 December 2009.
It follows that if the NovoRapid FlexPen insulin, the subject of the script addressed to Mrs Mitchell on 31 December 2009, never found its way to Mrs Mitchell, it must be that it was presented and filled by the accused for his own purposes.
That conclusion is not invalidated by the fact that the prescription was probably created when the accused was seeing another patient. The creation of the prescription was a relatively simple matter and it occurred within the first three to four minutes of the consultation with Mr Jackson commencing. This is consistent with it being at the forefront of the accused's mind and him wishing to deal with it before he became too involved in the consultation.
The submission of the defence that the accused may have signed on the patient/agent line of the prescription as a matter of habit, and not because he was presenting the prescription to be filled at the pharmacy, is no more than speculation. There is no evidence on this issue except that the signature of the accused appears in two places on the prescription and that the signature on the patient/agent line at the very least tends towards a finding that it was the accused who presented the prescription to be filled. For the reasons set out above, there is other evidence to support that proposition, i.e. the conclusion that neither Mrs Mitchell nor anyone on her behalf, filled the prescription on the evening of 31 December 2009.
I have concluded that the 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. Deactivation of the prescription
The Crown submitted that if the accused had issued the prescription for NovoRapid of 31 December 2009 for a legitimate medical reason he would have had no reason to delete it from Mrs Mitchell's medical records. The Crown submitted that it was a deliberate deactivation which was then corrected. This emerged from the reason given for each deactivation. The Crown submitted that if the reason given for the first deactivation was for the stated reason "wrong", one would have expected another prescription to immediately issue. This did not occur. The same prescription was reactivated and then almost immediately deactivated with the reason "not needed" given.
The Crown submitted that the stated reason for the second deactivation was inconsistent with a defence submission that the prescription was created at the request of Mrs Mitchell and filled on her behalf. If the prescription was "not needed", the original would have been destroyed and not presented at the CMDC pharmacy later that day to be filled.
The Crown submitted that the only rational explanation for the deactivation was that the accused had improperly written the prescription for NovoRapid insulin otherwise than for his normal medical practice and instead intended using it to murder his wife and that he wanted to conceal what he was planning to do. The Crown submitted that the deactivation, activation and then deactivation was indicative of a consciousness of guilt on the part of the accused for what he was planning to do with the improperly obtained insulin.
The defence submitted that the fact that the creation and deactivation on two occasions of the prescription on 31 December 2009 over a period of less than two minutes while the accused was in consultation with another patient explained why the accused might have been distracted and why he might have made mistakes in deleting and reactivating the prescription. The defence submitted that if the accused had intended to generate a prescription and then conceal it, there was no need for him to have reactivated and deactivated the prescription a second time.
The defence submitted that there was no good reason for the accused to deactivate the script because deactivating it did not serve to delete it entirely from the MedTech 32 records. Inactive medications could be viewed by doctors applying a filter to the patient medication profile. This would reveal the medication prescribed, the time and date it was generated and by whom with a strike through. The defence submitted that it could not be concluded that the deactivation was an effective mode of concealing its existence when it was so easily accessible.
The defence relied upon the evidence of Dr Vadali. She could not explain why certain medications in patient records were deactivated, other than to say that a doctor may upgrade or downgrade medication. She confirmed that no reason need be given to deactivate a script. The defence submitted that Dr Vadali's evidence confirmed that occasionally a doctor would inadvertently or unintentionally deactivate a script. The defence submitted that in the listening device recorded conversation of 5 November 2014, in an unguarded moment, the accused appeared genuinely ignorant about the manner in which records could be deleted and what deactivation of a script meant.
The defence submitted that the deactivation of the script could have been inadvertent, particularly given the distracting conditions under which the creation and deactivation of the prescription took place. The defence submitted that these alternative explanations prevented the deactivation of the prescription being a matter which could be properly taken into account as indicating consciousness of guilt of the offence charged.
The defence submission that deactivation of a prescription is an ineffective way of trying to conceal a prescription involves a somewhat circular argument. While it is true that the MedTech 32 system allowed deleted prescriptions to be viewed if the relevant filter were applied, that assumes that another doctor or someone else might subsequently wish to view Mrs Mitchell's medical records and to examine the details relating to a deactivated prescription, even where the reason for the deactivation was set out as "not needed". Since Mrs Mitchell was the accused's patient, the subsequent intervention in the near future of another doctor was unlikely and even if another doctor saw Mrs Mitchell, there was no reason why that doctor would go back and check a deactivated prescription. In any event, the initial effectiveness of the deactivation of the prescription can be seen from the fact that when a subpoena relating to Mrs Mitchell's medical records was served on the CMDC, the records which were produced did not show the deactivated prescription. It was only after the prescription was reactivated on 24 November 2011 that the circumstances concerning the creation, deactivation and reactivation of the prescription were more closely investigated. In that regard, the attempted concealment of the deactivation of the prescription was successful in that it was only during the coronial inquiry that a subpoena relating to Mrs Mitchell was served on the CMDC.
The defence submission that the activation and deactivation of the prescription which occurred shortly after 5.01pm on 31 December 2009 was inadvertent should be rejected. Such a submission fails to take into account that for each deactivation a reason was given. This is quite inconsistent with any suggestion of inadvertence. If inadvertence can be disregarded, the evidence of Dr Vadali on that issue is irrelevant.
The fact that there were two deactivations of the prescription does not assist the defence if both were intentionally performed. A more rational explanation is that put forward by the Crown, namely that the accused, on reflection, thought that the explanation "wrong" was likely to give rise to questions and that is why he replaced it with the more complete explanation "not needed".
Given that the two deactivations of the prescription on 31 December 2009 were intentional but that the prescription was in fact filled, it is difficult to offer any explanation other than that these actions were motivated by a consciousness of guilt in that the accused wished to conceal the creation and ultimate filling of the prescription, Exhibit V. Accordingly, I find that those two deactivations of the prescription were motivated by a consciousness of guilt on the part of the accused. Reactivation of prescription on 24 November 2011
It was common ground that on 12 October 2011 a subpoena (Exhibit AF) from the Coroner to produce Mrs Mitchell's medical records was served on the CMDC. It was received by a receptionist, Ms Spooner, and in due course handed to the Practice Manager, Ms Plastow. At that time the coronial inquest into the death of the deceased had been adjourned and was due to recommence about six weeks later.
The practice of the CMDC was that a subpoena was scanned into the patient file. The subpoena then remained in the patient's file in the filing section. Any patient's file can be accessed by a doctor at the Centre at any time, even if they were not seeing the patient. If a doctor opened a patient's file to look at it but made no change to it, this would not appear on the MedTech32 audit trail (T.160.42). The existence of a subpoena in the filing part of a patient's file would not be obvious to a doctor looking at the file unless he or she went specifically to the filing section.
The reactivation of the NovoRapid prescription of 31 December 2009 relating to Mrs Mitchell occurred on 24 November 2011, 12 days after the service of the subpoena. It is clear that the accused reactivated the prescription because his username BRC and his login were used. The contrary was not submitted by the defence.
The Crown submitted that the reactivation of the prescription occurred at a time when it was clear from the inquest proceedings that insulin was an issue. The Crown submitted that the Court should conclude that somehow the accused found out about the subpoena and realised how suspicious the deletion of the NovoRapid prescription would appear. The Crown submitted that there could be no reason for the reactivation of the prescription other than that the accused was trying to deprive the Coroner of compelling evidence that implicated him in the murder of the deceased. The Crown submitted that the only rational reason for reinstating the prescription was that the accused had used the insulin from the prescription to murder his wife and therefore this is evidence of consciousness of guilt.
The defence submitted that there was no evidence that the accused was aware on 24 November 2011 that a subpoena had been served on the CMDC for the production of the medical records of Mrs Mitchell. The defence relied upon the evidence of Ms Plastow that the placing of a subpoena on a patient's medical record was a separate filing function of the MedTech system which would not come up automatically when a patient's records were opened. A doctor would need to look into a specific inbox in order to become aware of the existence of the subpoena (T.138.46).
The defence submitted that the staff at the CMDC were not responsible for compliance with the subpoena. The subpoena was received by the Practice Manager, entered into the "inbox" function of the MedTech patient file for Mrs Mitchell and then sent to the subpoena register at Wentworthville. The subpoena was answered by a Ms Frazer, who produced Mrs Mitchell's medical records on 13 October 2011. The records produced did not display the 31 December 2009 prescription.
In the alternative, the defence submitted that it was a reasonable hypothesis that the accused consulted Mrs Mitchell's medical records as a response to learning that issues concerning the prescription of 31 December 2009 were being raised in connection with the inquest. The defence submitted that it does not necessarily follow that the reactivation was deliberate. Properly analysed, the reactivation could have been inadvertent.
It is true that there is no evidence of the accused being made aware of the service of the subpoena on the CMDC. It can, however, be inferred that at this time most persons in the CMDC would have been aware that the accused was a person of interest in relation to the death of the deceased and that a coronial inquiry into that death was in progress. It is difficult to imagine the service of a subpoena on behalf of the Coroner requiring the production of medical records of one of the accused's patients not being the subject of discussion amongst the staff. This is particularly so when the subpoena was initially served on a receptionist and passed onto the Practice Manager.
Given the timing of the service of the subpoena, the point which the coronial inquiry had reached and the date when the prescription was reactivated, I infer that the accused did become aware of the subpoena and as a result consulted Mrs Mitchell's medical records. No other reason has been offered by the defence for why those medical records would have been consulted by the accused at that time. There is no evidence of reactivation of the prescription being inadvertent, as distinct from deliberate. No reason has been offered for why the reactivation might have been inadvertent. While there was no obligation on the defence to adduce such evidence, the effect of its absence was that the defence was relying on a bare possibility.
In those circumstances, I am satisfied that the Crown has established that at some time between 12 October and 24 November 2011 the accused became aware that a subpoena for the production of the medical records of Mrs Mitchell had been served on the CMDC, that he accessed those records on 24 November 2011 and that he reactivated the NovoRapid prescription of 31 December 2009 on those records. I have reached that conclusion by way of inference from the likelihood that the service of the subpoena on the CMDC would have become known to many of the staff members and if he did not find out directly, this fact would in due course have been communicated to the accused.
Because the question of insulin being involved in the deceased's death had arisen in the coronial inquiry by this time, and because of the service of the subpoena, I am satisfied that the accused opened Mrs Mitchell's medical records and reactivated the prescription. If that inference is correct, it is difficult to envisage any intention on the part of the accused other than to adjust Mrs Mitchell's medical records so that it did not appear that he was attempting to conceal the fact of the prescription being issued. This would only have been a matter of concern to him had he, as I have already found, deliberately sought to conceal the fact of the issuing of the prescription on 31 December 2009. Since the reinstatement of the prescription was directly linked to the original attempt to hide the fact that such a prescription was issued, it is likely that the deactivation of the prescription was motivated by a consciousness of guilt on the part of the accused. Internet searches
Before putting the competing submissions, there were a number of factual matters which were not in dispute between the parties. The unchallenged evidence of Professor Carter was that the article entitled "Intentional Overdose with Insulin: Prognostic Factors and Toxicokinetic/Toxicodynamic Profiles" was written from a clinical rather than a forensic perspective. Its content included information regarding outcomes in the 25 cases it reported. This included information regarding four cases where there was an adverse outcome: two involved brain damage and two involved death. The article did not contain information regarding how long insulin remained detectable in blood after death. The webpage visited referred to medical rather than forensic issues. This was consistent with its title - "diabetes.emedtv.com".
Mr Cheng gave evidence as to the electronic searching of the computer that the police seized from the accused's home. He had a bachelor of electrical engineering degree and a post graduate qualification in computer forensics. He had done specialist training in a number of areas to do with electronic evidence analysis. He was provided with the accused's computer, which was removed by police on 4 January 2010. He made a complete copy of its hard drive. All of the images on the hard drive were inspected over a matter of weeks by Detective Cole.
The timing of the computer searches was not in dispute, i.e. 1.31am on 30 December 2009 and 8.30pm on 30 December 2009. There was a repeat visit to the webpage only. There was no return to the "Intentional Overdose with Insulin …" website. There was nothing to suggest that the dense technical information on either the webpage or in the article had been studied. Mr Cheng was not asked to examine the computer for search activity proximate to the time of the internet searches and the viewing of the webpages in question. Mr Cheng did not say that there was no internet history available for the days on which those items were searched for.
It was common ground that the screenshots were the result of keyword searches for 'insulin' and 'fatal'. As a consequence there was no information about the surrounding internet activity. Mr Cheng's evidence was that there was no internet browsing history for the websites in question. The absence of history might mean that the user conducted the search without creating or storing a history of it which is called "incognito" browsing. It might also mean that the search history was deleted. However, I note that such a history could be deleted manually or automatically and the browser itself might delete the history after a certain period. Mr Cheng was unable to say how the browser on this computer was configured.
In addition, third party programs which are installed on computers to improve their efficiency, might delete the history. Mr Cheng agreed that there were numerous third party programs on the market that did this and that he could not say whether there was such a program on this computer. His evidence was that something affecting the integrity of the computer such as powering down without saving activity might also delete internet browsing history. There was no evidence concerning the steps taken to preserve the integrity of the computer after its seizure.
Mr Cheng was unable to say which of the number of explanations was the cause of the absence of an internet browsing history. He was unable to say whether the searches of those websites was done in a way designed not to leave any traces in the browser.
The defence did not submit that the accused did not do the internet search or access the webpage and articles. It was also common ground that the accused co-operated with police once they became involved. He consented to them searching his home and identified the computer as his during that search on 1 January 2010. The computer was still where it was on 1 January 2010 when police seized it on 4 January 2010. The accused freely gave Detective Hibbs his password.
The Crown submitted that the timing of the searches showed a protracted period of time close to when the deceased died during which the accused was thinking about overdoses of insulin. The Crown submitted that the chart of prescriptions of insulin issued by the accused (Exhibit AU) over a two year period showed that he had extensive experience in prescribing insulin in its various forms. The Crown submitted that this was not a search which he made to make sure that he was giving one of his patients the right dose (particularly at 1.31am). The Crown submitted that the accused had no legitimate medical reason for these searches because as a doctor he would have known the therapeutic doses of insulin but would not necessarily have known the quantity needed for a fatal dose or how long before it took effect. That is why he needed to look it up.
The Crown submitted that one of the webpages (diabetes.emedtv.com, Exhibit BL) stated that "an overdose with the short or rapid acting insulin is typically more dangerous than an overdose with an intermediate or long acting insulin". The Crown submitted that whether that statement was true or not was irrelevant, it was the accused's belief if he accepted that statement as correct, which was relevant.
The Crown submitted that the "Intentional Overdose with Insulin" article stated that: "A delay between insulin injection and first medical treatment in excess of six hours appear to be a significant independent predictor of an unfavourable outcome of insulin poisoning". The Crown noted that the article also had a table which described the range of levels of insulin in the cases where there was an unfavourable outcome and the range of times after injection before treatment was commenced in the cases with unfavourable outcomes. The median amount of injected insulin was stated to be 450 units with a range of 250 - 600 units. The median time for an unfavourable outcome was around six hours.
The Crown submitted that the searches were done in a way which did not leave any trace in the browsing history folder. The Crown submitted that they were either done in 'incognito' mode or that the history was subsequently deleted. It was, however, not known whether this deletion was deliberate for the reasons set out in the evidence of Mr Cheng. The Crown noted, however, that the only reason why these webpages were discovered was because there was a screenshot image in the temporary cache when the computer's hard-drive was examined. Their discovery required a careful search. The only way these two websites were discovered was by a police officer laboriously examining every single image on the computer's hard drive of which these were the only two "snapshots" involving the use of insulin.
The Crown submitted that the only rational explanation for these searches for overdoses of insulin was that the accused was surreptitiously seeking to obtain information to further his plan to murder his wife.
On this issue, the Crown also relied upon what it submitted was a lie told about the internet searches by the accused to his wife, Julie Crickitt, on 29 October 2014 (Exhibit BQ at bottom of p 2 and p 14). The transcript of the audio recording showed on page 2, in the course of a prayer, the accused asking God to expose the lies of the police in "fabricating things from my computer" and on page 14 he said "the last day or … second last day of the thing … they brought in this new evidence, right, supposedly was … a screen dump from my computer, right … with a Google search about how to kill somebody by injection. It was insulin … not impossible that they could have done it even if I had looked at the site which of course I didn't, but if I had it still wouldn't have had that …".
The Crown submitted that this was a deliberate lie by the accused designed to convince his wife that he was not responsible for the internet searches which the police had found on his computer. The Crown submitted that this was a lie told by him in the knowledge that the internet searches implicated him in the death of the deceased and that these lies could be used as a consciousness of guilt.
The defence submitted that there was nothing sinister in the absence of any internet browsing history relating to these two websites because that history could have been automatically deleted in a number of different ways without there being an intent on the accused's part to hide the history. The defence submitted that if the internet browsing history were available, it might well show that these websites were viewed by the accused as part of his medical practice. As presented by the Crown, the defence argued, these websites were removed from their context and simply stood in a contextual vacuum.
In relation to the alleged lies told by him to Julie Crickitt, the defence submitted that the passage of time was significant in that almost five years had passed since the webpage and article had been accessed. There was no reason why the accused would have had any occasion to recall these events for at least two years because Detective Cole did not find the electronic snapshots of interest until June 2011 and Mr Cheng's report was dated 28 November 2011. A further two years had passed before these matters were brought to his attention by police and discussed by the accused with Julie Crickitt.
The defence submitted that looking at these websites in isolation had the effect of taking the activity out of a context which might have included numerous searches and visits to webpages of interest to a medical practitioner.
The defence submitted that the accused appeared to be genuinely ignorant of the content of the article in the latter listening device recorded conversation because he referred to the subject matter of the article as "how to kill". The conversation was strongly suggestive that the accused had a misunderstanding of the article's content. The defence submitted that what the accused said in that recorded conversation was consistent with him having a genuine lack of recollection of the content of the article.
If the only evidence of the accused having an interest in the effects of insulin was the internet searches, there would be considerable force in the defence submissions. When, however, one takes into account the date when the searches were carried out and the time (1.31am) at which one of the searches was made, together with the evidence relating to the issuing of the NovoRapid prescription for Mrs Mitchell on 31 December 2009 and my findings in relation thereto, the internet searches fit neatly into the Crown case. In this regard, it is important to note that the defence did not challenge the proposition that it was the accused who carried out the searches on the dates and at the times referred to.
There was no evidence of any reason why the accused would have carried out the searches on those dates. No patient file was identified in relation to which the searches could be relevant. That is not to suggest that there was any obligation on the part of the defence to adduce such evidence. What it goes to is that the defence only relied upon a series of possibilities which might account for the searches, e.g. if the context in which the searches were made was known it might identify medical issues with which the accused was concerned at the time.
The defence submission that the accused, when talking to his wife in October 2014 might have genuinely had no recollection of the internet searches, is inherently improbable. While that might have been the case had he been asked for the first time in October 2014 whether he had made the searches, it is most unlikely that this would have been the situation when his attention had been drawn to the specific searches and their content during the inquest. Having had his memory refreshed in that way, one would have expected him to remember the searches, particularly because of their subject matter, and because he had carried them out within 48 hours of the deceased's death.
I am satisfied that the Crown has established that the only rational explanation for these internet searches was that the accused was seeking to obtain information to further his plan to murder his wife by an injection of insulin.
I am also satisfied that the accused was lying to Julie Crickitt in October 2014 when he said in the prayer that the police were fabricating things from his computer and when he denied that he had looked at a site which dealt with the death of persons by an injection of insulin. I accept the Crown submission that this was a lie told by the accused in the knowledge that the searches implicated him in the death of the deceased and that this was a lie told by him because of a consciousness of guilt of the offence on his part.
Although the Crown did not specifically refer to this, there is another exchange between the accused and Julie Crickitt which took place on 5 November 2014 (Exhibit BT) where the accused told a lie to her. The relevant part of the conversation was: "BRIAN CRICKITT: … which she got dispensed and they're saying that a couple of hours later I wrote her a script for the short acting insulin - umm and that I had the script filled somehow and that I've then deactivated the script, I'm not sure what that means. JULIE CRICKITT: … BRIAN CRICKITT: I don't know what that means, I don't know how you deactivate. But anyway they're saying that in November 2011 I reactivated the script in her records. So that looking at the records they would see that she, that she had this prescription. It doesn't make sense 'cos they haven't taken records." (Exhibit BT, pp 4 - 5)
The accused's assertion that he did not know what deactivating a prescription meant was an obvious lie. It is inconsistent with his acknowledged deactivation of the NovoRapid prescription for Mrs Mitchell on two occasions at 5.01pm on 31 December 2009. As I have already found, that deactivation was deliberate because he entered a reason for the deactivation on each occasion. I am satisfied that this was a lie told by the accused in the knowledge that an admission by him that he had deactivated the prescriptions might in the mind of Julie Crickitt implicate him in the death of the deceased and that it was a lie told by him because of a consciousness of guilt of the offence on his part. Lies told by the accused in his interviews with police
It is convenient, given that this issue has already been raised, to consider this part of the Crown case.
The Crown submitted that the accused told a number of lies during his interviews with police and that these lies could be used as indicating a consciousness of guilt of the offence on his part. The Crown submitted that the accused began to tell lies as soon as the police arrived at his home on the morning of 1 January 2010. The Crown noted that the police first arrived at 8.53am, just minutes after he had said that he discovered his wife dead and called triple-0. He told police who arrived at the scene (Officers Moylan and Sirol) that he had an argument with his wife, had left and driven to a car-park opposite the Catholic Club in Campbelltown and slept in the car. He provided Constable Sirol with an elaborate route which he used to drive back home from the Catholic Club. He told the police that he got home at 8.15am.
The Crown submitted that the accused continued to tell lies in his first ERISP (Exhibit F) which was recorded at the police station and which commenced at 9.50am. The Crown noted that on this occasion the accused said that he drove from Woodbine into Campbelltown, stopped near Koghigaya Park, slept for a while, then drove again to Narellan, turned down the Camden Bypass and went down Razorback to Picton.
The Crown submitted that as the accused said this, he pretended to think hard and was motioning with his hands in an attempt to make his lies believable. The Crown submitted that he continued this lie as to his movements in detail, even adding that he was listening to his iPod (Q. 293). The Crown submitted that this was all an elaborate lie. The Crown noted that he lied on three occasions in his first ERISP about whether he had an intimate relationship with Ms Livermore.
The Crown accepted that in order for these lies to be used as evidence of consciousness of guilt, the Court would have to be satisfied that the telling of the lies was motivated by a consciousness of guilt and not by some other reason, e.g. embarrassment at the fact that he was with his girlfriend on the night that his wife died. The Crown submitted that the extensive nature of the lies and the effort that the accused put into telling them was indicative of a deliberate attempt to divert suspicion away from himself, rather than embarrassment that he was with his girlfriend.
The Crown submitted that because part of the accused's motive for the murder was his desire to be with Ms Livermore, he deliberately lied to the police about where he had been the previous night. The Crown submitted that the accused must necessarily have realised that if he told the police that he was at his girlfriend's place the previous night, they would have immediately become suspicious that he might be responsible for the death and they would have then initiated a more thorough investigation into the circumstances of the death.
The Crown submitted that should the Court reach this conclusion, the only reasonable explanation for the accused's lies was that he was conscious of his guilt for his wife's murder and wished to avoid the probability that the police would suspect him in the event that they knew the truth about his relationship with Ms Livermore.
The defence submitted that the accused's decision to tell the police the truth about his relationship with Ms Livermore was not a decision which he had arrived at because he knew that police had interviewed Ms Livermore. The defence noted that Ms Livermore was not interviewed by police until 7.10pm on 1 January 2010 at which time the police had taken the accused back to Woodbine so that he could be present during the search of the home. The defence noted that it was at the conclusion of the search that he voluntarily confessed to police that he had not told the truth in his earlier interview. He gave his second ERISP at 9.48pm (Exhibit G).
The defence submitted that the timeline between the interviews showed that the accused could not have known about Ms Livermore being interviewed and was consistent with the statement by the accused in his second ERISP that he formed the intention to correct his lies as to his whereabouts earlier in the day.
The defence submitted that the explanation for the lies in the first ERISP was that which the accused gave to the police in the second ERISP. He lied out of embarrassment and concern as to how his participation in an affair would be viewed by police given the death of the deceased. He was concerned that he might be wrongly implicated in the death of the deceased. The defence submitted that the accused's lies told in the first interview with Constables Moylan and Sirol were not pre-prepared. The defence submitted that the detail provided in the first ERISP, as to the specifics of the route taken on the drive, was only provided in response to the interviewing police officers pressing for that detail.
The defence submitted that the accused's lies were limited to his whereabouts after leaving the marital home and as to his relationship with Ms Livermore and the future of their relationship. The defence submitted that otherwise his account of events before leaving home that night and following his return the next morning had not been shown to be untrue in any respect and on the contrary, had been confirmed in a number of respects. The defence submitted that the accused's account of events in his second ERISP should be accepted because his account was supported by evidence and not contradicted by evidence.
In support of that last point, the defence relied upon the following:

The texts between the accused and the deceased, making it likely that they had had dinner together after his arrival at about 8pm.
His evidence and that of Ms Ball that the deceased had been drinking on 31 December 2009.
The state of the bed and the fact that the deceased was wearing a nightie supported that both the accused and the deceased had gone to bed after dinner.
The tea mugs next to the bed and in the kitchen sink supported the accused having made a cup of tea for both of them.
The photographs showing a packed suitcase in the front passenger side of the accused's vehicle.
His evidence about telephoning Ms Livermore at 1.30am was supported by her earlier calls to him late on 31 December 2009 and at 1.28.17am on 1 January 2010 when she reached his voicemail. The evidence of Ms Livermore supported that of the accused.
His evidence as to what happened at Ms Livermore's was supported by her oral evidence.
The accused leaving home to go to work on 1 January 2010 was supported by Ms Livermore's evidence.

Looked at in isolation, I would not be prepared to find that the lies told by the accused to Constables Moylan and Sirol, and later in his first ERISP, were indicative of a consciousness of guilt on the accused's part. His embarrassment and concern that the police might wrongly implicate him in the deceased's death would provide a powerful motivation for telling those lies.
However, the authorities make clear that these matters are not to be looked at in isolation but all of the circumstances established by the evidence are to be considered and weighed in determining whether the Crown has established its case beyond reasonable doubt. Having found as I have that the accused improperly obtained a supply of insulin on 31 December 2009, other than in the normal course of his work as a medical practitioner by means of the Kristina Mitchell NovoRapid prescription, leads me to a different conclusion in relation to this evidence. Not only was it evidence capable of indicating a consciousness of guilt, but I find that those specific lies as to his whereabouts after he left his home and as to his relationship with Ms Livermore, did indicate a consciousness of guilt on his part. Motive
The Crown submitted that there was a powerful, twofold, emotional motive for the accused to murder the deceased. This was his loathing of the deceased and his love of Ms Livermore.
The Crown submitted that it was apparent from the ERISPs (Exhibits F and G) that the accused was unable to hide his "utter disdain and contempt" for the deceased. The Crown noted that even on the day of her death, the accused was unable to resist explaining to police how difficult she was, how unfair and ungrateful she was towards him and how humiliated she would make him feel. The Crown submitted that his hatred of the deceased was evident from the interviews themselves.
The particular matters identified by the Crown were that the deceased had alienated all her friends (Exhibit F, Q.70), that she was just really negative (Exhibit F, Q.72), shouted a lot (Exhibit F, Q.93), that he felt cold towards her (Exhibit F, Q.118), that he was fed up with her in mid December and after a trip to Melbourne in early December (Exhibit G, Q.117, Q.139) and that she always complained about money (Exhibit G, Q.120). He told the deceased's eldest daughter, Mrs Williams, that the deceased was impossible and complained all the time (T.211.12).
The Crown submitted that in contrast to his loathing and contempt for the deceased, the accused was undeniably in love with Ms Livermore. The Crown referred to Q.55 of Exhibit G where the following exchanged took place: "Q.55 Did you ever speak with Linda about leaving your wife for her? A. We talked about the future and being together … The idea was, not that we were going to go off together then or anything like that, but you know, I could get somewhere, sort out Kris, divorce her and, you know, we'd hopefully get together in whatever relationship … I mean I would have been very happy to …" The Crown noted that the accused had had sexual intercourse with Ms Livermore and had been with her surreptitiously late at night at her house "most nights" for the last few weeks before the deceased's death (Exhibit G, Q. and A. 74). They had discussed marriage.

Having told Mrs Wiggins about the death of her mother at 11am on 1 January 2010, he gave an address at which to meet him. The address was that of Ms Livermore and when Mrs Wiggins went to that address later in the day, the accused was there with Ms Livermore.
When Stuart Riley (the deceased's son) spoke to the accused on 1 January 2010 he also was given Ms Livermore's address at Leumeah and when he went there, he found the accused with Ms Livermore.
The day after the deceased's death, Graham Randall (the deceased's brother) went to the accused's home at Woodbine, Ms Livermore was there with the accused along with a number of other people.
On 3 January 2010 members of the deceased's family went to the morgue at Glebe to view the deceased's body. They observed the accused arrive with Ms Livermore who was driving the deceased's BMW motor vehicle.
While Ms Livermore stayed outside during the actual viewing, she and the accused were seen together by members of the deceased's family afterwards and it was noted that Ms Livermore was trying to give instructions as to what café they should attend.
On this occasion they were seen to walk away holding hands by Kayleen Riley.
It was the accused who decided that the deceased's body should be cremated, which was contrary to the wishes of her family, although they ultimately acquiesced when he told them that this is what the deceased wanted.

On the basis of that material, the Crown submitted that the accused's behaviour in the days after the deceased's death was inconsistent with that of a grieving husband. The Crown submitted that just hours after the discovery of the deceased's body, the accused not only chose to stay at Ms Livermore's house while the police examined his house but invited both Mrs Wiggins and Mr Riley (the deceased's children) to her house, being the house of the woman he had been having an affair with. The Crown submitted that because the viewing of the deceased's body was within three days of her death, the accused should have realised how inappropriate it was that Ms Livermore accompany him, that she drive the deceased's car and that they stand and talk intimately outside the morgue.
The Crown submitted that the accused's behaviour was consistent with him being solely and acutely focused on being with Ms Livermore and continuing his relationship with her. The Crown submitted that it was consistent with him having little respect for the deceased and no great concern about her family and with her children knowing about his relationship with Ms Livermore. The Crown submitted that the accused was so enamoured with Ms Livermore that he did not care whether he alienated himself from his step children during a time when they were deeply distressed over the sudden and unexpected death of their mother.
The Crown submitted that the accused's insistence upon the deceased being cremated was consistent with him wanting to ensure that after the deceased's body was released following forensic pathology, further testing could not be conducted in the future.
The defence submitted that the appearance and demeanour of the accused in his interviews was consistent with that of a grieving husband. His presence at Ms Livermore's house was explained by the police being in occupation of his house. The defence submitted that Ms Livermore driving the accused to the morgue and subsequently holding hands with him was consistent with her evidence that she did so in order to support him. The defence submitted that it was improbable that someone wishing to conceal their motive to kill would conduct himself in that way.
The defence noted that Mrs Ball, a close friend of the deceased, said that the accused was very upset and crying on 2 January 2010 and the deceased's brother, Graham Randall, gave evidence that when he spoke to the accused at Leumeah he hugged him and the accused was "sort of crying a bit" (T.243.41).
The defence submitted that people respond to grief differently and that the Court could not draw any reliable inferences based on a supposition as to how the accused should have reacted following the death of the deceased.
The defence noted that Mrs Wiggins said that the accused insisted upon cremation but agreed in cross-examination that either she or her sister had acquiesced to cremation once they learned from the accused that it was the deceased's wish to be cremated. The defence also noted that a coronial representative "went into detail" about the options available as to the timing of the cremation and that the decision to refrain from cremating the deceased until the Coroner's Office had finished with all parts of her body was made as a family. Cremation did not occur until 25 January 2010.

(1993) 178 CLR 193

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