Citation: Crickitt v R [2018] NSWCCA 240
Court: NSW Court of Criminal Appeal
Date: 26 October 2018
Judges: Bathurst CJ, R A Hulme J, Davies J
Background
The appellant, a general medical practitioner, was convicted of murdering his wife following a judge-alone trial before Hoeben CJ at CL in December 2016. The death occurred at their Campbelltown home on or about 1 January 2010. The appellant had left the family home on New Year's Eve to spend time with a woman with whom he was having an affair, returning the following morning to report finding his wife dead on the floor.
The Crown alleged that the appellant injected his wife with a lethal dose of insulin. The deceased was not diabetic, and the Crown argued there was no legitimate medical reason for the appellant to administer such an injection. The prosecution case was entirely circumstantial: there was no direct forensic evidence that the cause of death was hypoglycaemia resulting from an insulin injection, and an autopsy had been unable to determine the cause of death.
The appellant was found guilty, and a sentence of 27 years imprisonment with a non-parole period of 20 years and 3 months was imposed. He sought leave to appeal against conviction on two grounds: that the verdict was unreasonable, and that the trial judge erred by failing to direct himself on the question of lost forensic opportunity.
Legal Issues
- Whether the guilty verdict was unreasonable or unsupported by the evidence under s 6(1) of the Criminal Appeal Act 1912 (NSW), given that there was no direct evidence establishing insulin injection as the cause of death.
- Whether, as a matter of law, the Crown could prove causation of death in a murder trial without direct evidence of the specific mechanism of death alleged.
- Whether the trial judge erred by failing to give himself a warning or direction concerning the appellant's loss of forensic opportunity when assessing whether the prosecution had proved its case beyond reasonable doubt.
Decision
Ground 1: Unreasonable verdict
The central argument on appeal was that, because the Crown had committed to a case based on insulin poisoning as the cause of death, the absence of direct forensic proof of that mechanism was fatal to the conviction. The appellant contended that even accepting he had obtained and injected insulin, the Crown could not establish the necessary causal link between that act and the death without direct evidence that insulin actually caused death by hypoglycaemia.
The Court of Criminal Appeal rejected this argument. It held that it was not fatal to the prosecution's case that there was no direct evidence of insulin causing the death. A circumstantial case can establish causation without direct evidence of mechanism, provided the totality of the evidence supports the inference beyond reasonable doubt. The Court found it was well open to the trial judge to infer that the appellant caused his wife's death. The Court also emphasised that circumstantial evidence must not be assessed piecemeal; all circumstances must be weighed together in determining whether any inference consistent with innocence remains reasonably open.
Ground 2: Lost forensic opportunity warning
The appellant argued that the trial judge should have warned himself, as the tribunal of fact, about the significance of a lost forensic opportunity. This argument related to the absence of reliable post-mortem evidence capable of confirming or excluding insulin as a cause of death.
The Court rejected this ground. It held that the issue before the trial judge was simply whether the elements of the Crown's circumstantial case, taken as a whole, were capable of proving the offence beyond reasonable doubt. This was not a case in which there was an absence of evidence capable of proving the Crown's case. No occasion arose for the judge to give himself a formal warning of the kind proposed.
Orders Made
- Leave to appeal against conviction granted.
- Appeal dismissed.
Key Takeaways
- In a circumstantial murder case, the absence of direct evidence establishing the precise mechanism of death does not necessarily preclude a guilty verdict; it is open to the tribunal of fact to infer causation from the totality of the circumstantial evidence.
- Where the Crown runs an entirely circumstantial case, appellate courts must consider and weigh all the circumstances together rather than examining them in isolation, consistent with the approach confirmed in R v Baden-Clay (2016) 258 CLR 308.
- The Court of Criminal Appeal confirmed that, in a judge-alone trial, a finding of guilt will not be disturbed under s 6(1) of the Criminal Appeal Act 1912 unless there is no or insufficient evidence to support it, the evidence was all one way, the finding is otherwise unreasonable, or a misdirection caused a miscarriage of justice.
- No obligation arose for a trial judge to give a "lost forensic opportunity" warning simply because the medical evidence was equivocal; the relevant question remained whether the cumulative circumstantial evidence proved the offence beyond reasonable doubt.
- A verdict will only be unreasonable where the tribunal of fact must have entertained a doubt; it is insufficient that the tribunal might have reached a different conclusion or that doubt was merely possible.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 38
Cases
- Bell v R [2017] NSWCCA 207
- Filippou v The Queen (2015) 256 CLR 47
- Libke v The Queen (2007) 230 CLR 559
- M v The Queen (1994) 181 CLR 487
- Mahmood v The State of Western Australia (2008) 232 CLR 397
- Morris v The Queen (1987) 163 CLR 454
- R v Baden-Clay (2016) 258 CLR 308
- R v Crickitt (No 2) [2017] NSWSC 542
- R v Crickitt [2016] NSWSC 1738
- Shepherd v The Queen (1990) 170 CLR 573
- SKA v The Queen (2011) 243 CLR 400