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Supreme Court 28 September 2016

R v Davis

[2016] NSWSC 1362

Homicide
CRIMINAL LAW MURDER AND ATTEMPTED MURDER JUDGE ALONE TRIAL REASONS FOR VERDICT CIRCUMSTANTIAL CASE VERDICTS OF GUILTY

Citation: R v Davis [2016] NSWSC 1362
Court: Supreme Court of New South Wales
Date: 28 September 2016
Judge: R A Hulme J

Background

The accused was an aged care worker employed at SummitCare, a residential aged care facility at Wallsend in New South Wales. Three elderly residents of the facility's Mountview ward became hypoglycaemic after being injected with insulin for which there was no medical need. Two of the three residents, Ms Fowler and Mr Kelly, died. The third, Ms Manuel, survived.

The Crown alleged that the accused administered the insulin injections on 18 and 19 October 2013, with an intention to kill each victim. The accused denied responsibility and maintained that someone else must have administered the injections.

The trial proceeded before a judge alone, following an application by the accused under the Criminal Procedure Act 1986 (NSW), to which the Crown consented.

  • Whether the Crown proved beyond reasonable doubt that the accused administered the insulin injections, where no direct evidence existed and the case rested entirely on circumstantial evidence.
  • Whether all reasonable hypotheses of innocence, including the possibility that someone other than the accused had administered the injections, were excluded on the evidence.
  • Whether insulin administered in these circumstances constituted a "poison" for the purposes of s 27 of the Crimes Act 1900 (NSW).

Decision

The sole disputed question was identity: who administered the injections. It was not in dispute that each victim was injected with insulin and that this was done with an intention to kill, nor that insulin administered without medical need qualified as a poison.

Hulme J applied the well-settled principles for circumstantial cases, drawing on the High Court's restatement in The Queen v Baden-Clay [2016] HCA 35. For a guilty verdict to follow from circumstantial evidence, the circumstances must be inconsistent with any reasonable hypothesis other than the accused's guilt, and guilt must be the only rational inference available on all the evidence considered together rather than piecemeal.

The court was satisfied beyond reasonable doubt that one person was responsible for all three injections, and that all persons other than the 20 SummitCare staff present in the facility during the relevant timeframes were excluded as suspects. Of those 20 staff members, the court found no evidence pointing to any of them except the accused. A series of circumstances, each individually insufficient but cumulatively compelling, distinguished the accused from all other staff: these included his access to the victims, his movements, and text messages he had sent that were found to be indicative of prior knowledge that Ms Manuel and Mr Kelly had received insulin injections. The accused's attempts to explain the messages as workplace banter were rejected.

On the question of insulin as a poison, the court applied the definition approved by the High Court in Basto v The Queen (1954) 91 CLR 628, noting that a substance need not cause death in the particular dose administered, provided it is of a nature to do so if administered in sufficient quantity. Insulin injected without medical need was injurious to life or health and therefore met the statutory definition.

Orders Made

  • Count 1: Guilty of murder of Ms Gwendolyne Fowler
  • Count 2: Guilty of administering a poison with intent to murder Ms Audrey Manuel
  • Count 3: Guilty of murder of Mr Ryan Kelly

Key Takeaways

  • In a purely circumstantial case, a conviction is available only where the guilt of the accused is the only rational inference open on all the evidence, considered as a whole rather than item by item, consistent with the principles restated in The Queen v Baden-Clay [2016] HCA 35.
  • A substance that is not inherently lethal in ordinary use, such as insulin, can constitute a "poison" under s 27 of the Crimes Act 1900 (NSW) where its administration without medical justification is injurious to life or health.
  • Circumstantial evidence can distinguish one suspect from others even in a workplace setting with many potential perpetrators, provided the individual circumstances relating to that person are assessed collectively.
  • The Supreme Court rejected the accused's alternative hypothesis that other staff members may have been responsible, finding it was not a reasonable hypothesis available on the evidence but rather mere speculation.
  • Text messages foreshadowing the deaths of residents who were comparatively stable at the time were treated as circumstantial evidence of the accused's prior knowledge of the insulin injections, rather than as the innocent workplace banter the accused contended.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18 (murder), 27 (administering poison with intent to murder)
- Criminal Procedure Act 1986 (NSW), ss 132, 132A (judge alone trials)
- Evidence Act 1995 (NSW), s 98(1)

Cases
- The Queen v Baden-Clay [2016] HCA 35
- Basto v The Queen (1954) 91 CLR 628
- Lane v R [2013] NSWCCA 317
- R v Cramp (1880) 5 QBD 307
- R v Haydon (1845) 1 Cox CC 184