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Court of Criminal Appeal 28 November 2018

Haines v R

[2018] NSWCCA 269

Homicide
CRIMINAL LAW CONVICTION APPEAL TWO COUNTS OF MURDER MOTIVE AND OPPORTUNITY ESTABLISHED CIRCUMSTANTIAL CASE APPEAL DISMISSED

Citation: Haines v R [2018] NSWCCA 269
Court: NSW Court of Criminal Appeal
Date: 28 November 2018
Judges: Hoeben CJ at CL; Davies J; Button J

Background

The appellant was a registered nurse employed on night shifts at an aged care facility in Ballina. The Crown alleged that, on the night of 9 to 10 May 2014, she injected insulin into two elderly residents, neither of whom was insulin-dependent. Both residents fell into hypoglycaemic comas and died. The Crown's case was circumstantial: the appellant had motive (both residents had made complaints about her) and opportunity (she was the nurse on duty that night).

The appellant was convicted by a jury in the Supreme Court on two counts of murder following a trial before Garling J in October and November 2016. She was sentenced to an aggregate term with a non-parole period of 27 years. She sought leave to appeal both her convictions and her sentence.

The conviction appeal raised 20 grounds, covering the sufficiency of evidence, the propriety of trying both counts together, the use of coincidence and propensity reasoning, alleged errors in the admission of evidence, the fairness of the judge's summing-up, and claims that defence counsel failed to follow instructions and act competently.

  • Whether the verdicts were unreasonable and unsupported by the evidence
  • Whether the two murder counts should have been tried separately
  • Whether the Crown improperly relied on coincidence or propensity reasoning without obtaining leave under ss 98 and 100 of the Evidence Act 1995 (NSW), and whether the requirements of s 101 were thereby circumvented
  • Whether the trial judge was required to direct the jury that evidence on one count was inadmissible on the other, and to warn against propensity reasoning
  • Whether evidence of admissions was wrongly admitted, including without a voir dire under s 189
  • Whether defence counsel failed to follow the appellant's instructions, failed to seek a separate trial, failed to challenge a key witness's evidence, and failed to object to aspects of the Crown's closing address
  • Whether the trial judge's summing-up was unfair, unbalanced, or failed to isolate the evidence on each count
  • Whether the aggregate sentence was manifestly excessive

Decision

Sufficiency of evidence (Ground 1). The Court of Criminal Appeal refused leave to appeal on this ground. The circumstantial case, including evidence of motive, opportunity, and the appellant's access to insulin, was sufficient to sustain the verdicts. The court was not persuaded that no reasonable jury could have returned guilty verdicts on either count.

Joint trial and coincidence/propensity reasoning (Grounds 2 to 9, 13 to 15). The Court held that the two counts were properly tried together. The deaths occurred on the same night, in the same ward, by the same method, while the same nurse was on duty. The court found this was properly characterised as a single transaction or series of connected acts, and that trying the counts together did not give rise to a miscarriage of justice. On the coincidence and propensity grounds, the Court accepted that no formal application for leave under s 98 or s 100 of the Evidence Act had been made, and no explicit direction under s 101 was given. However, the Court was satisfied that the two murders were so closely connected in time, place and method that each count was properly before the jury as part of the same factual matrix, and no substantial miscarriage of justice resulted from the absence of formal procedural steps.

Admissions evidence and defence counsel conduct (Grounds 10, 16 to 20). The Court examined the claims that trial counsel failed to follow instructions, improperly pressured the appellant to sign a document making admissions, failed to seek a separate trial, and failed to adequately challenge a key witness. On each of these grounds, the Court found either that the factual premise was not established, that counsel had made a sound forensic judgment, or that no resulting miscarriage of justice was demonstrated. The admission of the conversations said to constitute admissions was upheld; the court found no reversible error in the judge's approach to s 90 of the Evidence Act.

Summing-up (Grounds 12 to 14). The Court considered the summing-up as a whole and found it was not unfair or unbalanced. While there was no specific direction isolating the evidence on each count, the absence of such a direction did not cause a miscarriage of justice in the circumstances of this case.

Sentence appeal. The Court granted leave but dismissed the appeal. The indicative sentences for each murder were within range. The degree of accumulation was a matter of sentencing discretion, and no error of the kind identified in House v The King (1936) 55 CLR 499 was established. The Court noted that the criminality of one murder could not be subsumed within the other, consistent with Cahyadi v R [2007] NSWCCA 1.

Orders Made

Conviction appeal:
- Leave to appeal refused on Grounds 1, 2, 3, 6, 9, 11, 15 and 16
- Leave to appeal granted on Grounds 4, 5, 7, 8, 10, 12, 13, 14, 17, 18, 19 and 20, but the appeal on those grounds dismissed

Sentence appeal:
- Leave to appeal against sentence granted
- Appeal against sentence dismissed

Key Takeaways

  • A circumstantial case involving motive, opportunity, and method was held sufficient to sustain two murder convictions, even without direct evidence of the act of injection.
  • Where two deaths occurred on the same night, in the same ward, by the same nurse and by the same method, the Court of Criminal Appeal confirmed that trying both counts together did not constitute a miscarriage of justice, and the events could properly be characterised as a single transaction.
  • The absence of a formal application for leave under ss 98 and 100 of the Evidence Act did not automatically produce a miscarriage of justice where the factual connection between the counts was so close that coincidence or propensity issues were not truly raised in a legally distinct sense.
  • Allegations that trial counsel failed to follow instructions, or failed to take particular procedural steps, will not succeed on appeal unless the appellant can demonstrate that the conduct caused a miscarriage of justice, not merely that different choices could have been made.
  • In sentencing for multiple murders, the Court confirmed that the criminality of one murder cannot be absorbed into the sentence for another, consistent with Cahyadi v R, and that the degree of accumulation of sentences remains a matter of judicial discretion reviewable only for demonstrated House v The King error.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Criminal Procedure Act 1986 (NSW), ss 21, 29(1)
- Evidence Act 1995 (NSW), ss 55, 90, 98, 100(2), 101, 104(4), 137, 189(1)(a)

Cases:
- House v The King (1936) 55 CLR 499
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Mahmood v State of Western Australia [2008] HCA 1; 232 CLR 397
- Em v The Queen [2007] HCA 46; 232 CLR 67
- Castle v The Queen; Bucca v The Queen [2016] HCA 46; 91 ALJR 93
- Ludlow v Metropolitan Police Commissioner [1971] AC 29
- Davidson v R [2009] NSWCCA 150; 75 NSWLR 150
- Germakian v R [2007] NSWCCA 373; 70 NSWLR 467
- Additional NSW Court of Criminal Appeal authorities: Alkhair v R [2016] NSWCCA 4; AP v R [2013] NSWCCA 189; *