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Court of Criminal Appeal 30 November 2018

Davis v R

[2018] NSWCCA 277

Homicide
CRIMINAL LAW CONVICTION APPEAL CIRCUMSTANTIAL CASE JUDGE ALONE TRIAL

Citation: Davis v R [2018] NSWCCA 277
Court: NSW Court of Criminal Appeal
Date: 30 November 2018
Judges: Hoeben CJ at CL; Harrison J; Schmidt J

Background

The applicant was an aged care team leader employed at a residential facility in Wallsend, NSW. In October 2013, three elderly residents of the same ward were each found unresponsive in a severely hypoglycaemic state. Medical evidence established that each had been injected with high doses of insulin without any clinical need for such treatment.

Two residents died as a result of the injections. The third survived the immediate episode but never recovered her prior level of functioning and died from unrelated causes in January 2015. The applicant was charged with two counts of murder and one count of administering a poison with intent to murder.

The trial proceeded before Hulme J in the Supreme Court sitting without a jury. The identity of the person who administered the insulin was the sole issue at trial: it was not disputed that the injections were deliberate and carried out with an intention to kill. Hulme J found the applicant guilty on all three counts and imposed an aggregate sentence of 40 years' imprisonment with a non-parole period of 30 years. The applicant sought leave to appeal against the convictions.

  • Whether the trial judge erred in admitting evidence for a coincidence purpose under the Evidence Act 1995 (NSW)
  • Whether the trial judge improperly used coincidence evidence through a process of "backwards reasoning," effectively reversing the onus of proof
  • Whether the verdicts were unreasonable or unsupported by the evidence, including whether the evidence established that the same person committed all three offences and whether a sufficiently precise timeframe for the injections was established

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds.

On the first ground, the Court rejected the submission that the coincidence evidence (evidence of the striking similarities between the three incidents) was wrongly admitted. The threshold requirement under s 98 of the Evidence Act 1995 is that coincidence evidence will have "significant probative value," either alone or in conjunction with other evidence the tendering party has adduced or will adduce. The Court confirmed that this threshold does not require the other evidence to constitute direct proof of the accused's involvement, nor does it require guilt on at least one count to be independently established before the coincidence evidence can be considered.

On the "backwards reasoning" complaint, the Court found no error in the trial judge's approach. The applicant contended that the judge had essentially reasoned in reverse: starting from the exclusion of other possible suspects and arriving at guilt as the only remaining inference. The Court rejected that characterisation. Hulme J had assessed the full body of circumstantial evidence, including the coincidence evidence, and concluded that it proved guilt beyond reasonable doubt on a forward and conventional basis. The applicant was not convicted merely because others had been ruled out.

On the unreasonable verdict ground, all three judges were satisfied that the verdicts were well open on the evidence. The circumstantial case included the applicant's presence at the facility during the relevant timeframes on both days, his access to treatment rooms where insulin was stored, his skill in administering insulin injections, the discovery of syringes and insulin-related materials at his home, and text messages suggesting foreknowledge of two victims' impending deaths. Harrison J described the cumulative weight of the Crown's circumstantial case as overwhelming.

Orders Made

  • Leave to appeal against conviction is granted.
  • The appeal is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that coincidence evidence under s 98 of the Evidence Act 1995 does not require independent direct evidence of the accused's involvement in any particular offence, nor proof of guilt on at least one count, before the evidence can be tendered and used.
  • A purely circumstantial case can sustain a conviction to the criminal standard where the cumulative weight of the evidence excludes reasonable hypotheses consistent with innocence, provided the reasoning proceeds from evidence to conclusion rather than from elimination of others to guilt.
  • No error was established in the trial judge's approach to coincidence evidence simply because the Crown's case involved identifying the accused as the common factor across multiple incidents after others were accounted for, so long as the judge engaged with all of the evidence and applied the correct standard.
  • In dismissing the unreasonable verdict ground, the Court affirmed that a judge sitting alone in a criminal trial is expected to apply common sense and collective wisdom to the evidence, in the same way a jury would, without treating that exercise as occurring in a "state of suspended reality."
  • Where the identity of the perpetrator is the only issue at trial, and no direct evidence exists, a conviction can be upheld where the circumstantial evidence as a whole, including opportunity, access, skill, physical materials found at the accused's home, and communications, is sufficient to satisfy the tribunal of fact beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 27
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Evidence Act 1995 (NSW), ss 55, 56, 97, 98, 100(2), 101(2)

Cases:
- Bell v R [2017] NSWCCA 207
- Dickson v R [2017] NSWCCA 78
- DSJ v R; NS v R [2012] NSWCCA 9; 259 FLR 262
- El Hassan v R [2007] NSWCCA 148
- Filippou v The Queen [2015] HCA 29; 256 CLR 47
- Folbigg v R [2005] NSWCCA 23; 152 A Crim R 35
- Gilham v R [2012] NSWCCA 131
- Haines v R [2018] NSWCCA 11
- Hughes v The Queen [2017] HCA 20; 92 ALJR 52
- IMM v The Queen [2016] HCA 14; 257 CLR 300
- Lane v R [2013] NSWCCA 317
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89
- R v Ceissman [2010] NSWCCA 50
- R v Davis [2016] NSWSC 1362
- R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487
- R v Hillier [2007] HCA 13; 228 CLR 618
- R v Merritt [1999] NSWCCA 29
- R v MR [2013] NSWCCA 236
- R v RN [2005] NSWCCA 413