Haines v R

1. [1]

   THE COURT:

Nature of proceedings

1. [2]

   The applicant seeks leave, pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) to appeal from her convictions on the two counts of murder.

2. [3]

   On 16 December 2016 the applicant was sentenced for both the offences of murder to an aggregate sentence comprising a non-parole period of imprisonment for 27 years, commencing 7 July 2014 and concluding on 6 July 2041, with a balance of term of 9 years concluding 6 July 2050. The indicative sentences were each a non-parole period of 22 years and 6 months, with a balance of term of 7 years and 6 months. The applicant has sought leave to appeal against that sentence.

3. [4]

   In the conviction appeal, the applicant relies upon the following grounds of appeal:

CROWN CASE AND FACTUAL BACKGROUND

1. [5]

   The Crown case was that the applicant, while employed as a registered nurse at the St Andrews Aged Care facility in Ballina (St Andrews), murdered Ms Spencer and Ms Darragh, who were residents there, after they made complaints about her. She did so by injecting each of them with insulin. Neither Ms Spencer nor Ms Darragh were insulin dependent. As a result of the insulin injection, both Ms Spencer and Ms Darragh fell into a hypoglycaemic coma and died.

2. [6]

   There was evidence as to the layout of St Andrews, both oral and by way of photographs. Ms Darragh was in room 10, in what was known as the Dianella 1 ward. Ms Spencer was in room 4 of that ward. Ms Patterson, another resident who had made a complaint about the applicant, was in room 31. Ms Darragh’s room was opposite and to the right from the nurses’ station. It was visible from that station. On one side was the medication room. On the other side and two doors down was Ms Spencer’s room.

3. [7]

   The applicant was born in South Africa and received a qualification as a Registered Nurse in 1994. She practised as a nurse in South Africa between 1997 and 1999. The applicant came to Australia on 31 December 2000.

4. [8]

   The applicant resided in Victoria and commenced employment there as a registered nurse shortly after her arrival. She worked as a registered nurse in Victoria until 2009 when her nursing registration was cancelled by the Nurses’ Board of Victoria because of allegations of unprofessional conduct.

5. [9]

   In February 2012, she applied for and was re-issued with her nursing registration by the Australian Health Practitioner Regulation Agency (AHPRA) with conditions that she provide performance reports by a Director of Nursing or equivalent every three months for 18 months from the commencement of any employment.

6. [10]

   On 20 February 2014 the applicant submitted an application for employment at St Andrews. On 13 March 2014 she commenced employment there as a registered nurse. She commenced unaccompanied night shifts as a registered nurse on 30 April 2014. Her employment there was subject to the conditions attached to her re-registration by AHPRA.

7. [11]

   Between 30 April and 8 May 2014 the applicant completed six night shifts as a registered nurse at St Andrews. She worked from 10.15pm on Friday 9 May 2014 to 6.45am on Saturday 10 May 2014 in her capacity as a registered nurse.

8. [12]

   As of May 2014, St Andrews had about 117 residents. The facility was divided into different areas of care:

   1. (1)

      High Care – Dianella wards 1 and 2.

   2. (2)

      High Care Dementia – Boronia ward.

   3. (3)

      Low Care/Hostel – Beach House, Lake House, River House and Hardwicke House.

9. [13]

   Evidence was given by Ms Wendy Turner. She was the Director of Care at St Andrews and had been since 26 July 2013. She had a supervisory role over nursing staff and was responsible for rostering. She had responsibility for dealing with complaints made by residents or members of their families and others. Her role was to investigate and take action as necessary. She was responsible for employing nursing staff.

10. [14]

    As at May 2014 there were about 148 employees at St Andrews and about 10 per cent of those were RNs or EENs. The residents of St Andrews were predominantly persons over the age of 65. There were about 41 beds in the two Dianella wards and they were all on the ground level with one resident per room. The Dianella ward housed residents with high needs due to medical or physical issues. There were three shifts – the morning shift from 6.30am to 3.00pm, the afternoon shift from 2.30pm to 10.30pm and the night shift from 10.15pm to 6.45am. Each shift overlapped to allow outgoing staff to hand over to incoming staff. For the night shift there was one RN and four CSEs for the entire facility.

Medication procedures

1. [15]

   RNs and EENs were responsible for the administration of medications. CSEs did not have a role in the administration of medication. Medications were kept in the medication rooms and access was by use of swipe cards. That meant that only RNs and EENs could access the medication room. Schedule 8 (S8) and Schedule 4 (S4) drugs were kept in a locked cupboard in the medication room and were subject to specific accounting procedures to ensure all of those drugs were accounted for. This was the responsibility of the RN on duty, who had the keys to the locked cupboard. The keys were handed over from one shift to the next.

2. [16]

   As of 9 May 2014 insulin for insulin dependent patients at St Andrews was kept in the medication room. It was not kept in the locked cupboard.

3. [17]

   The normal allocation of staff during night shifts was for the RN and one CSE to be allocated to the Dianella ward, two CSEs to the Boronia ward and one CSE to the Hostel. The RN on night shift was solely responsible for the administration of medication for the entire facility. CSE staff did not have access to medication, nor were they allowed to administer it on any shift. There was no public access to the Dianella ward. There was access to the Dianella ward by staff members with personal electronic swipe cards.

4. [18]

   Ms Turner first met the applicant when she applied for a job as an RN. The applicant was interviewed in late February 2014. She was employed as a night shift nurse. After the applicant was allowed to commence unsupervised night shifts, she worked on 1, 2 and 3 and 7, 8 and 9 May 2014.

5. [19]

   The applicant's time sheets became Exhibit H (T107-109). Ms Turner agreed in cross-examination that she had telephoned AHPRA and confirmed that the applicant could work unsupervised at night time (T134.17-25).

Medical background of Ms Spencer and Ms Darragh

1. [20]

   Ms Spencer was aged 77 at 10 May 2014. She had been a resident of St Andrews for three months at the time of her death. She was transferred to St Andrews following a stroke in December 2013 which resulted in left sided paralysis. She had a number of other medical conditions, including Type 2 Diabetes Mellitus, depression, stroke and hypertension. She had a hairline fracture of her left arm. She suffered from chronic pain to the left side of her body. Her cognition was relatively intact. Ms Spencer had a number of prescribed medications, including an anti-diabetic tablet. She was not on insulin treatment for her Diabetes Mellitus. As at 9 May 2014 Ms Spencer’s medical condition was stable and she was not clinically unwell.

2. [21]

   Ms Darragh was aged 82 at 10 May 2014. She had been a resident of St Andrews for over three years at the time of her death. She had a number of medical conditions, including atrial fibrillation (arrhythmia), congestive heart failure and vaginal pruritus. She was cognitively intact.

3. [22]

   Ms Darragh did not have Diabetes Mellitus and had normal screening blood glucose levels over the two previous years. She was not on any anti-diabetic medications including insulin therapy. Ms Darragh’s medical conditions were considered to be stable as at 9 May 2014 and she was not clinically unwell.

Complaints

1. [23]

   On 6 May 2014, Ms Turner was informed of a complaint by Ms Darragh against the applicant. She asked Ms Thompson, an EEN, about Ms Darragh’s complaint and was advised that Ms Patterson, another resident, had also complained. On the morning and the afternoon of 9 May 2014, Ms Turner and Ms White, who was an RN, spoke to Ms Darragh and Ms Patterson.

2. [24]

   Ms Turner recounted what Ms Darragh had told her (T.111):

3. [25]

   Later in the afternoon, Ms Turner spoke to Ms Patterson (T.112):

4. [26]

   At about 7pm that evening, Ms Turner left St Andrews. On the way out she spoke to Ms Thompson and told her that she would be coming back later to speak with the applicant about the complaints that had been made by Ms Darragh and Ms Patterson. Ms Thompson informed Ms Turner that she was aware of a complaint from another resident, Ms Spencer. Ms Turner asked Ms Thompson to record the complaint in writing and told her that she would talk further to Ms Spencer on the following Monday (T.113).

5. [27]

   Ms Turner returned to St Andrews at some time between 11 and 11.15pm. She entered through the main entrance, using her swipe card, and went to the nurses’ station in Dianella 1. There was no-one there. She did not recall seeing any other staff or strangers in Dianella. She went to Boronia and found the applicant there at the nursing station. It was a little after 11.15pm, probably around 11.20pm. She asked the applicant to come to her office to discuss the complaints (T.114-115).

6. [28]

   Ms Turner told the applicant that she had received some complaints about her. The applicant asked who made them. Ms Turner responded “Marie Darragh and Mardi Patterson”. The applicant responded “Marie had asked for some ointment for her itch and that she had applied some Curash Powder” (T.117, 136-137). The applicant told Ms Turner that she had helped Ms Patterson to the toilet and done nothing wrong but that Ms Patterson complained about her foot. Ms Turner responded “that’s why we need to meet on Tuesday so that you can give your version of events” (T.118).

7. [29]

   Ms Turner gave the applicant a document setting out the complaints (Exhibit G) in a sealed envelope. Ms Turner said a number of things to the applicant which she explained in her evidence:

8. [30]

   In cross-examination Ms Turner said that during the meeting on the night of 9 May 2014 the applicant did not become angry or emotional, and she concluded there was no reason not to allow her to continue to work the night shift. Ms Turner gave evidence that she did not administer any medication to either of the deceased that night.

9. [31]

   On Saturday 10 May 2014, Ms Turner received a telephone call from Ms Cunningham, the Deputy Director of Care, just before 9.40am. She was informed that Ms Darragh and Ms Spencer were unconscious and looked unlikely to survive. Having been alerted to the condition of those two women, she decided to return to St Andrews. When she arrived at about 10am, she checked on the condition of both Ms Darragh and Ms Spencer. She was told that both had given advanced care directions which directed they not be resuscitated in cases such as this.

10. [32]

    Ms Turner spoke to a general practitioner, Dr Mellor, who advised that the patients should be assessed at Ballina Hospital. Before this could occur, Ms Spencer died. Shortly thereafter, Ms Darragh also died.

11. [33]

    Ms Turner during the course of that day, received a telephone call from the applicant about the meeting that was planned for the Tuesday. Ms Turner did not tell the applicant during that conversation of the condition of either Ms Darragh or Ms Spencer.

12. [34]

    Later that afternoon (10 May), Ms Turner was approached by Ms Thompson who asked if she could check an ampoule/vial of insulin for a patient, Mr Ted Capewell, who had returned that day from Lismore Hospital. Ms Thompson advised that there was some insulin missing. A search of the medication rooms did not reveal the missing insulin. In the medication room at Dianella 1 they observed on a green tray a little rubber band from an insulin ampoule.

13. [35]

    The next contact Ms Turner had with the applicant was when she received a telephone call from her at approximately 10.30am to 10.45am on Monday 12 May 2014. The applicant wanted to resign from her position at St Andrews but was concerned about her registration and still intended to come to the meeting on Tuesday. Before the meeting on 13 May with the applicant, Ms Turner, Ms Cunningham and Ms Wilkinson, who was attending the meeting as a support person for the applicant, had a short meeting. Ms Wilkinson was responsible for payroll administration at St Andrews. At that meeting they agreed not to disclose to the applicant that Ms Darragh and Ms Spencer had died.

14. [36]

    The complaints from Ms Darragh, Ms Patterson and Ms Spencer were discussed during the meeting. The applicant was advised that she would be reprimanded and placed on the morning shift to work under supervision. The applicant said that she could not work day shifts because of her childcare arrangements and she tendered her resignation. The applicant was not told of the deaths of Ms Darragh and Ms Spencer as had been agreed.

15. [37]

    Ms Turner agreed in cross-examination that the applicant only resigned when she was told that she would have to work supervised day shifts. Ms Turner also agreed that Ms Patterson’s medicine chart recorded the applicant giving her Panadol at 11pm on 9 May 2014 (T.147-148). (The accuracy of that record was challenged by the Crown.)

16. [38]

    Ms Cunningham, the DDC at St Andrews, gave evidence. She had been employed there for over 30 years. She reported to Ms Turner. Her duties as DDC included supervising and directing the care of residents, supervising the staff, procuring supplies and overseeing the obtaining of medication. Another part of her role was to manage complaints from residents and staff.

17. [39]

    Ms Cunningham confirmed the evidence previously recorded concerning swipe cards and access to the medications rooms.

18. [40]

    Ms Cunningham was familiar with Ms Darragh and Ms Spencer and confirmed the evidence previously given as to their conditions and state of health as of 9 May 2014.

19. [41]

    On the morning of 10 May 2014, having been advised as to the condition of Ms Darragh and Ms Patterson, Ms Cunningham arrived at St Andrews at about 9 am. She spoke with a number of nurses and looked in on Ms Darragh and Ms Spencer. She then contacted Ms Turner. It was decided between her and Ms Turner that she should check the medication rooms and particularly the S8 drugs to see if there were any missing. Ms Cunningham conducted an audit of the S8 medication and established that none was missing. That afternoon, Ms Cunningham collected all of the sharps containers throughout the facility, sealed them with masking tape and labelled them as to where in the facility they came from.

20. [42]

    Ms White, an RN, gave evidence. She confirmed that on 9 May 2014 she and Ms Turner spoke with Ms Darragh and Ms Patterson about a complaint Ms Darragh had made in relation to the applicant. Ms White confirmed that Ms Turner made file notes (Exhibit G) of the complaints. Ms White left St Andrews at about 5pm on 9 May 2014 and was not present on 10 May.

21. [43]

    Ms White said that regular medications were administered by the use of Webster packs and there were different coloured Webster packs, depending on the time of day at which the medication was to be administered. If the medication was not part of the regular medication but was PRN (“as needed”), a general practitioner would prescribe the medication. It would be dispensed by a pharmacist and was kept in the medication room. When a resident asked for PRN medication, the nurse, whether it was a RN or an EEN, would go to the medication room, obtain the medication and then administer it.

22. [44]

    Ms White confirmed that there was no prescription for insulin for Ms Darragh and Ms Spencer and that there was no record of insulin being administered to either of them. The medication chart and progress notes for Ms Patterson were tendered. They showed that Panadol was administered to Ms Patterson as needed.

23. [45]

    Ms White gave evidence that an audit of the S8 Drugs after the deaths of Ms Darragh and Ms Spencer revealed no anomaly. Ms White had also carried out an audit of the S4 Drugs and discovered numerous anomalies (T.208; 222-223).

24. [46]

    Ms White said that insulin was not a S4 Drug. Ms White undertook an audit of insulin with Detective Staples. They counted the number of insulin ampoules which they could find on the premises. They could not account for ampoules that residents had brought separately into the premises. This particularly applied to Mr Capewell because they did not know how much he had brought in. It was not possible to know if any, and if so how many ampoules, were missing. Mr Capewell’s medication chart became Exhibit U. It recorded a gap in insulin administration between 30 April and 10 May because Mr Capewell was in hospital. Mr Capewell used Mixtard 30/70 insulin.

25. [47]

    Ms Norris, a resident who lived in the hostel, used Lantus SoloSTAR. This was a slow acting insulin. Her insulin was accounted for.

26. [48]

    Ms Young, a resident in Dianella, also used Lantus SoloSTAR insulin. Two of her ampoules were not accounted for.

27. [49]

    Ms White described the process for administering insulin. A fine needle was used. These were kept in the medication rooms. Each ampoule contained 3ml of insulin also referred to as 300 units. The empty ampoule would be disposed of in the sharps container in the medication room. The opened ampoule was kept in the medication room on a tray. The unopened ampoules were kept in the fridge in the medication room.

28. [50]

    In cross-examination, Ms White gave evidence that the administration of insulin that had been refrigerated would be painful. Nurses were given training in insulin administration. A glucometer measured a person’s blood sugar. There were glucometers in every ward at St Andrews. When shown Ms Patterson's medication chart, Ms White confirmed that it showed that she had been administered Panadol at 11pm on 9 May. Ms White was unsure who dispensed the Panadol from the signature. Ms White was also shown a printout of medication incidents from 1 July 2013. This revealed multiple medication errors (T.217-219).

29. [51]

    An insulin audit recorded that Mr Capewell had six full ampoules and another partially used ampoule at the time of the audit. The insulin had been dispensed on 7 September 2013. Five boxes had originally been dispensed and two boxes were remaining. Each box came with five ampoules.

30. [52]

    Detective Sergeant Gunn gave evidence concerning two empty ampoules of insulin. One of them had been located in a sharps container in Hardwicke House. The other was located in another sharps bin in the same hostel. An identifiable fingerprint was located on one of the ampoules, but it was not the applicant’s fingerprint and it was unable to be otherwise identified on the police database. DNA testing of that ampoule was unsuccessful. No identifiable fingerprints were located on the other ampoule. Female DNA was found on the other ampoule. It was not the applicant’s DNA. The DNA was otherwise unable to be identified (T.790-791).

31. [53]

    Ms Gill Pringle was an RN and had worked at St Andrews since August 2010. She had a swipe card that gave her access to the medication rooms and a master key to the locked medication cupboards. Ms Pringle said that she did a “buddy shift” with the applicant in which she demonstrated to the applicant the procedures in relation to S8 drugs, progress notes and medication charts.

32. [54]

    She gave evidence that there were only two residents on insulin in the high care wards, Mr Capewell and Ms Young. Mr Capewell required an insulin called Mixtard 30/70 and Ms Young, a different insulin, called Lantus. Their insulin was kept in the fridge in the medication room of Dianella 1. Unused ampoules of insulin were kept in the same place. Partially used ampoules were kept on the bench in that room with a label on it in a green plastic tray.

33. [55]

    Ms Pringle gave evidence that on 6 May 2014 she was in the medication room in Dianella 1 and that she moved the insulin ampoule belonging to Mr Capewell from the shelf into the fridge because Mr Capewell was in hospital and the ampoule was not being used at that time. The insulin ampoule was in a plastic re-sealable Glad Wrap bag with Mr Capewell’s name on it and she placed it on top of the boxes of unused insulin in the fridge. There were about 100 units of insulin left in the ampoule. Typically ampoules held 3mls or 300 units.

34. [56]

    Ms Pringle was not on duty on either 9 or 10 May 2014. She was next on duty on Sunday 11 May. Ms Thompson told her that Mr Capewell’s insulin was missing. Ms Pringle said, “It's not. I put it back in the fridge last week. I got fed up with seeing it on the bench”. Both Ms Pringle and Ms Thompson then went into the medication room and checked the fridge. They were unable to find the partially unused ampoule of insulin that Ms Pringle had put in the fridge on 6 May (T.237).

35. [57]

    Kellie Lloyd gave evidence. She was employed as an RN at St Andrews. She knew Ms Darragh, Ms Spencer and Ms Patterson. Ms Patterson was very particular about her needs and would complain when she thought it necessary. Ms Patterson had been asking for Panadol before 9 May 2014. It was an “as need” medication and Ms Lloyd would not wake her to give her Panadol.

36. [58]

    On Friday 9 May 2014, she was the RN on duty on the afternoon shift in Boronia. At 10.25pm when the applicant came into Boronia, Ms Lloyd commenced the hand over to her. There was nothing remarkable to be drawn to the applicant’s attention and Ms Lloyd did not mention anything about either Ms Darragh or Ms Patterson. She had told the applicant that Ms Spencer was on an antibiotic. Ms Lloyd did not hand her swipe card over to anyone nor did she administer insulin to either of the deceased.

37. [59]

    In cross-examination, Ms Lloyd said that Ms Darragh had a habit of yelling out and moaning for assistance. She often required to be taken to the toilet. She did not use an incontinence pad.

38. [60]

    Pamela Duncan was employed as a CSE at St Andrews. Her duties involved assisting residents with their personal care, including bathing and toileting, as well as feeding, dressing and assisting their mobility. She had no role with administering medication. At about 8pm, Ms Duncan observed Ms Darragh sitting in her chair, watching the football. She observed that Ms Darragh was happy and they had a conversation about how she was feeling.

39. [61]

    Dawn Thompson, an EEN at St Andrews, gave evidence. Her duties included the administration of some regular and as needed medication, but excluded S8 medications. Ms Thompson first met the applicant about two weeks before 9 May 2014.

40. [62]

    On the afternoon of Saturday 3 May 2014, while doing her regular medication round in Dianella, Ms Thompson received a complaint about the applicant from Ms Darragh. She told Ms Darragh that she would pass on the complaint. She also received a complaint about the applicant from Ms Spencer. She told Ms Spencer that she would pass on that complaint.

41. [63]

    At the evening hand over, at about 10.15pm on 3 May, Ms Thompson was handing over to the applicant. During that hand over, the applicant asked Ms Thompson whether there had been any complaints about her. Ms Thompson said to her knowledge there had not been, as she had passed the complaints to the relevant person.

42. [64]

    Ms Thompson said that on 9 May, she commenced her shift at about 1.30pm. She received the hand over from Ms Writer. At about 7pm, she gave Ms Spencer her medication. At the time Ms Spencer was alert, although in some pain. She also gave Ms Darragh her medication. She too at the time was alert and made no complaints of feeling unwell.

43. [65]

    Ms Thompson continued with the rest of the shift dealing with the normal routine, including making progress notes as needed and answering call bells from residents as required.

44. [66]

    Ms Thompson told Ms Turner about the complaint from Ms Spencer in the evening. At 7pm she assisted in administering Endone to Ms Spencer and noticed nothing unusual about her. At 8pm she administered medication to Ms Darragh who did not complain of anything untoward.

45. [67]

    At about 10.10pm the applicant arrived for her shift. She attended the hand over, which took place in the nurses’ station in Dianella 1. There was nothing out of the ordinary recorded during the hand over. Ms Thompson completed her shift and left at about 11pm.

46. [68]

    Ms Thompson gave evidence that the insulin for a patient, Mr Capewell, would usually be kept under the S8 locked cupboard in a green medication tray. At about 5pm on 10 May, Mr Capewell returned from hospital to St Andrews and he required insulin. Mr Thompson noticed that the partially used ampoule of Mr Capewell’s insulin was missing from the bench. She checked the fridge and the ampoule was not there. She then took an unopened ampoule to Ms Turner to have it checked and used the new ampoule to administer insulin to Mr Capewell.

47. [69]

    On Sunday 11 May, Ms Thompson told Ms Pringle that Mr Capewell’s insulin was missing. Nurse Pringle replied “It's not. I put it back in the fridge last week. I got fed up with seeing it on the bench.” Ms Thompson and Ms Pringle then went into the medication room and checked the fridge, but they were unable to find the partially used ampoule of insulin that Ms Pringle had put in the fridge on 6 May.

48. [70]

    Ms Thomson said that she did not administer Panadol to Ms Patterson on the evening of 9 May 2014 and she did not give her swipe card to anyone nor did it go missing. In cross-examination she explained that she had asked Ms Turner’s permission to use the ampoule from the fridge on 10 May 2014 because it was cold and that would cause discomfort when injected.

49. [71]

    Narelle Edwards, a CSE at St Andrews, gave evidence. She worked the night shift starting at 11pm on 9 May 2014 and finished at 6.30 am the following morning. She observed the applicant leave Boronia ward with Ms Turner. During this shift, Ms Edwards was under the supervision of the applicant. The applicant discussed with her how to move Ms Patterson. The applicant asked her what to do if Ms Patterson needed assistance because she had been told not to approach Ms Patterson because of the complaint. Ms Edwards told the applicant that if she needed help, she would provide it.

50. [72]

    Marlene Ridgeway, a CSE at St Andrews, gave evidence. For the 12 months leading up May 2014, she had predominately been working nightshifts in Dianella 1 and 2. She commenced work at about 9pm on 9 May 2014. She met the applicant for the first time and commenced her usual routine.

51. [73]

    At about 11pm, Ms Darragh called for assistance. Ms Ridgeway attended Ms Darragh’s room and Ms Darragh complained to her of being itchy. She went to the bathroom and obtained some cream, which she squeezed on to Ms Darragh’s hands and she observed Ms Darragh applying it to herself. When asked whether she was okay, Ms Darragh answered, “Yes, I'm fine.” Mr Ridgeway observed that Ms Darragh was alert and oriented, and made no complaint of having received medication that she was not meant to have.

52. [74]

    Ms Ridgeway left Dianella 1 at around midnight to go to the Boronia ward. When she left Dianella 1, the applicant was in the nurses’ station at Dianella 1. The applicant was the only staff member in Dianella when Ms Ridgeway left. Ms Ridgeway returned to Dianella at about 1am and commenced the rounds at Dianella with the applicant.

53. [75]

    During that process, Ms Ridgeway heard Ms Darragh moaning. She and the applicant went to Ms Darragh’s room to investigate. On entering the room, Ms Ridgeway saw Ms Darragh lying on her right side, cuddling up to a pillow and making noises. Her eyes were not open. Ms Ridgeway said she called Ms Darragh’s name five or six times, calling out “Marie”. The applicant was behind her saying, "Ssh, Marie". Ms Ridgeway thought that Ms Darragh was having a bad dream and so she and the applicant left the room and continued with their ordinary rounds. It was not usual for Ms Darragh to make such noises.

54. [76]

    As she was coming out of room 3, Ms Ridgeway saw the applicant coming out of Ms Spencer’s room, which was room 4. Ms Ridgeway asked the applicant whether Ms Spencer had a blue pad on or a pink pad on. The pads were for incontinence. This was important because if Ms Spencer had a blue day pad she needed to be given a pink night pad. The applicant responded, “Issy's all right. She's in a blue pad but she's okay.” As a result, Ms Ridgeway did not check on Ms Spencer (T.324-325).

55. [77]

    It was not Ms Ridgeway’s practice to check on Ms Darragh, who had a call bell and would ring it when she needed assistance. Nor would Ms Ridgeway check on Ms Patterson, who would become very upset and angry if she was woken up. Instead, Ms Patterson would ring the call bell if she needed assistance.

56. [78]

    Later in the shift, Ms Ridgeway spoke to the applicant. The applicant told Ms Ridgeway that she had only been at St Andrews for one week and already had two complaints against her. The applicant told Ms Ridgeway that the complaints were from Ms Patterson and Ms Darragh. The applicant showed Ms Ridgeway the notice enclosing the complaints (Exhibit G). Ms Ridgeway gave the applicant some advice about getting to know the residents. The applicant said “I have to front the director and deputy director”. Ms Ridgeway replied “Well, you might just get a reprimand”.

57. [79]

    At 4am, Ms Ridgeway left Dianella and went to Boronia to assist Ms Edwards, leaving the applicant alone in Dianella until about 4.50am when Ms Ridgeway returned. Ms Ridgeway observed that the applicant was in the nurses’ station in Dianella 1. She and the applicant commenced to do the second round. When Ms Ridgeway came out of room 3, she saw the applicant standing near a trolley between rooms 3 and 4. T he applicant said to her, “Issy’s okay”. Ms Ridgeway did not check on Ms Spencer. Ms Ridgeway left at about 6.30am that morning.

58. [80]

    Ms Ridgway was not present when Ms Patterson was given any medication at 11pm, nor when Temazepam was administered to Ms Spencer.

59. [81]

    In cross-examination, Ms Ridgway agreed that it was normal for one staff member only to check on a resident during a round. The administration of Panadol did not require two staff members. Ms Ridgway said that she did not remember the applicant attending to a “peg feed”, which was the administration of food through the stomach of a patient. Ms Ridgeway did not agree that a “peg feed” “takes a while to set up”.

60. [82]

    Sally Donoghue was a CSE at St Andrews. She was present at the hand over on 10 May 2014 from the applicant to Ms Writer. There were no matters of note mentioned. Ms Donoghue attended Ms Darragh in room 10. When she walked in, she noticed that Ms Darragh was uncovered and lying on her right side facing the window cuddled up to her “Teddy”. The blankets were pulled back which was very unusual. Ms Donoghue said “Good morning, Marie. It's time to get up”. There was no response. Ms Donoghue observed “her breathing was a bit laboured”.

61. [83]

    Ms Donoghue sought to rouse her, touching her leg, gently shaking and calling her name. When she touched her skin, it felt cold. Ms Donoghue sought assistance from Ms Writer and Ms Janissen. Ms Donoghue briefly left the room. On her return, she was told that the family had been contacted. She and Ms Janissen tried to make Ms Darragh comfortable and gave her a wash. During the process of changing the bed, Ms Donoghue observed sweat marks indicating an unusual amount of sweat. She also observed that Ms Darragh’s bottom was unusually white, when normally it was purple and red because she slept on her back and side.

62. [84]

    When that task was completed, Ms Donoghue heard another CSE, Ms Moylan calling out to Ms Spencer trying to wake her. Ms Donoghue entered the room and they were soon joined by Ms Writer. Shortly afterwards, Ms Donoghue took care of Ms Spencer in the same way as Ms Darragh.

63. [85]

    During the course of the morning, Ms Donoghue observed the arrival of Ms Cunningham, Ms Turner and Dr Mellor. At about 10.30am, she repositioned Ms Darragh and Ms Spencer to prevent pressure build up. She received no response from either woman. During that process, she noticed that their respiration had slowed down. After returning from lunch at 11.30am, she was told that Ms Spencer had died. Preparations were being made to take Ms Darragh to hospital, but before this could take place, she also died.

64. [86]

    Gillian Writer, an RN at St Andrews gave evidence. On Saturday 10 May 2014, she commenced work at St Andrew at 6.30am. When she arrived, she received a hand over from the applicant. No issues were highlighted by the applicant and nothing was mentioned about Ms Darragh or Ms Spencer. During the hand over, she received the keys for the drug cupboards from the applicant. The applicant then left.

65. [87]

    At about 7am she was summoned by either Ms Donoghue or Ms Janissen to attend on Ms Darragh. She observed that Ms Darragh was sweating profusely and was unresponsive. She attempted to take her blood pressure and could not get a reading. She examined her eyes which were pinpoint and dilated. She noted that her left arm was in spasm. Ms Writer telephoned Dr Mellor. She described Ms Darragh’s condition to Dr Mellor and indicated to him that she believed that she had had a stroke. In the course of that telephone call, Dr Mellor gave her a telephone order authority to administer morphine and atropine. Contact was made with Ms Darragh’s next of kin at about 7.30am.

66. [88]

    At about 8.15am, Ms Writer was alerted by Ms Moylan, a CSE, to come to Ms Spencer’s room. Ms Writer observed that Ms Spencer was unresponsive, her eyes were pinpointed and dilated and her breathing was shallow. Ms Writer asked Ms Donoghue and Ms Janissen to attend to Ms Spencer in the way they had to Ms Darragh.

67. [89]

    Carole Dunn, an AIN at St Andrews, gave evidence. On the night of 9 May, she was working the evening shift at Dianella 1 from 2.30pm through to 10pm, with Ms Thompson and Ms Duff. At about 8pm she responded to a call from Ms Spencer and found her to be alert. Ms Spencer wanted pain relief. She also had contact with Ms Darragh that evening, who appeared normal, laughing and happy watching the football. Ms Dunn finished her shift at 10pm.

68. [90]

    Tracey Boyd, a CSE at St Andrews, gave evidence. On 9 May 2014 she started her shift at 11.15pm at the hostel section of St Andrews. During the shift, nothing out of the ordinary occurred. At 3.15am it was necessary to contact the applicant in order to get a S8 medication for Mr Campbell, one of the hostel residents. The applicant attended and the medication was administered to Mr Campbell by Helen Hosken and the applicant. Ms Boyd did not go to Dianella at any time during her shift.

69. [91]

    Judy McCormack, an RN at St Andrews, gave evidence. Before going on leave on 28 April 2014, she performed a “buddy shift” with the applicant. During the course of that shift, Ms McCormack demonstrated to the applicant various functions and responsibilities of the registered nurse for the night shift. Ms McCormack said that there were two patients in the Dianella ward who required insulin. Insulin was not administered during night shifts. The procedure at St Andrews was to take a blood sugar level before breakfast and insulin was given by the morning RN if the blood sugar was low.

70. [92]

    Julie McDuff, a CSE at St Andrews, gave evidence. Ms McDuff said that on 7 May 2014 she had received a complaint from Ms Patterson about “the night nurse”. Ms McDuff indicated she would pass the information on to the EEN, Ms Thompson. She made a note of the complaint in the progress notes of Ms Patterson and she passed the information to Ms White.

71. [93]

    Phillip Carter, the Chief Executive Officer of St Andrews, gave evidence. St Andrews had a Genesis security system, which involved the use of swipe cards, as well as a punch pad in the hostel. A swipe card was required after 5pm to enter the facility as a whole. Within the facility, a swipe card was required to access the utility and medication rooms. The swipe cards were programmed to meet the access needs of the particular staff member. There were also CCTV cameras set up on all entry points with monitors in the nurses’ station. The swipe card system recorded when a particular door was accessed by a swipe card. However, in late April 2014, a thunderstorm affected the recording of the swipe card access system. The system did not record whose swipe card was used when entering or leaving.

72. [94]

    A second system was also damaged in the same thunderstorm. On the beds, or in the bedrooms beside the bed, and also in the toilets, there was a system called the “Questek” system, or nurse call system. If a resident required assistance, they would push a button that would go to all staff members’ telephones so that they knew there was assistance needed. Following the thunderstorm, the call buttons themselves were working but the recording system was not.

73. [95]

    Mr Carter gave evidence that a security company called “SNP Security” were engaged to do random checks around the facility during the night. They never did it at the same time each night. They would do it on different nights. They would come to the door through the emergency or after hours call door. They would push the button that would be answered by the nurse in charge, who would let them in once they had been identified. They would then enter and do a routine inspection inside and outside, and they would sign off in a book to say that they had been there.

74. [96]

    As Chief Executive Officer any repairs had to go through him to be “signed off”. To his knowledge, there were no repairs, such as to windows or window screens, which had been carried out after 10 May 2014.

75. [97]

    Cassandra Wilkinson was employed at St Andrews. One of her functions was to arrange for photo identification and swipe card access for new employees. Ms Wilkinson confirmed that each swipe card was programmed for each particular employee. Ms Wilkinson had issued the applicant with her swipe card.

76. [98]

    Just before 10 May 2014, she had conducted an audit of all swipe cards. There were no swipe cards missing or unaccounted for. Unallocated cards were locked away and none were missing.

77. [99]

    On 11 May 2016, she was asked to try to download swipe card information. She was unable to do so because there had been a lightning strike some time before and that part of the recording system was not operating.

78. [100]

    On 13 May 2014, Ms Wilkinson was asked by the applicant to be present with her during a disciplinary hearing that she was required to attend. Ms Wilkinson agreed. Ms Wilkinson was present when Ms Turner and Ms Cunningham met with the applicant. Ms Wilkinson confirmed that during that meeting, the applicant had not been told that Miss Darragh or Miss Spencer had died.

79. [101]

    In cross-examination, Ms Wilkinson said that there were 154 employees, who each held a swipe card, as at 24 May 2014. She was unaware that the recording aspect of the swipe card had been damaged by the lightning strike until she was asked to download information from the system.

80. [102]

    Brian Gough was working as a security guard with United Security, which performed subcontracting work for SNP Security, within the Ballina area. He would perform night patrols to client premises. One of those premises was St Andrews. Mr Gough attended St Andrews on 10 May 2014 at 4.22am. He performed an external perimeter check in his vehicle and there was nothing to report. He went through St Andrews to the Dianella ward and entered the building. There was nothing out of the ordinary.

81. [103]

    Justin Sammut was a security guard on 9-10 May. At that time, he would regularly do patrols at St Andrews. He conducted two patrols on the night of 9 May 2014 and the morning of 10 May 2014. Nothing unusual was noted.

82. [104]

    Evidence was given by AB. AB said that he met the applicant in 2008 and they developed a relationship. That led to a conversation between them in 2009. AB said that the conversation took place about 9pm at night when he was visiting the applicant at her house in Victoria. They had watched an episode of a television show, CSI or a spin-off, in which a murder victim was poisoned or injected with something that led to their death. In a break towards the end of the show, the applicant and AB had a conversation as follows:

83. [105]

    There was no cross-examination of AB.

84. [106]

    Dr Jane Vuletic is a forensic pathologist, who performed the post-mortem examinations on both Ms Darragh and Ms Spencer. When she examined Ms Spencer, she found no evidence of a recent stroke. There was no evidence of injury or disease that could have led to death. There was no evidence of injury or a condition to the heart and cardiovascular system that could have led to death. Her opinion was that the immediate cause of death was insulin administration. Dr Vuletic was unable to find any administration or injection site, which was not unusual.

85. [107]

    When she examined Ms Darragh, there was no evidence of a stroke, and while she had a number of chronic conditions, including the coronary atherosclerosis and valve calcification, it was Dr Vuletic’s opinion that these conditions were stable and did not contribute to her death. There was no evidence of trauma. Her opinion was that the immediate cause of death was insulin administration. Dr Vuletic was unable to find any administration or injection site, which was not unusual.

86. [108]

    There was no cross-examination of Dr Vuletic.

87. [109]

    Professor John Carter gave evidence. Professor Carter was an endocrinologist. His qualifications included a Doctorate of Medicine. He was a fellow in endocrinology and had been employed as a senior endocrinologist at a number of different hospitals. Professor Carter had a specialty in diabetes. He was the past president of the Australian Diabetes Society, the past chairman of the Diabetes National Action Plan Implementation Committee and the past chairman of the Commonwealth Ministerial Advisory Committee on Diabetes.

88. [110]

    Professor Carter explained that insulin was produced in the pancreas and was necessary for the transport of glucose from the bloodstream into the cells in the human body. Diabetes is the condition which occurs when a person is not naturally producing insulin in their body. Diabetics can be injected with insulin, usually in fat tissue beneath the skin.

89. [111]

    There are different types of commercially available insulin. Some are faster acting than others. Mixtard 30/70 is a mixed insulin containing 30 per cent of the fast acting insulin and 70 per cent of the intermediate acting insulin.

90. [112]

    It is possible to determine whether a particular insulin within a person’s body was naturally produced or externally administered. By examining the amounts of insulin and C peptide in the bloodstream, one can assess whether the insulin was endogenous or exogenous.

91. [113]

    Hypoglycaemia is potentially a life threatening condition. The progressive effects of hypoglycaemia on the body, are increased sweating, palpitations, the heartbeat racing faster than normal, tremor, some vagueness in thought, confusion and memory problems leading to reduced consciousness and then to complete unconsciousness or coma. Because the brain does not get the glucose, or fuel, that it needs, the symptoms of vagueness, confusion and loss of consciousness result. If hypoglycaemia is not reversed then brain damage, initially reversible but then irreversible, will be caused and following that, the person will die. The elderly are more vulnerable to the consequences of hypoglycaemia.

92. [114]

    Professor Carter gave evidence that insulin was commonly measured in international units. An ampoule of Mixtard 30/70 contained 3ml of liquid. This was the equivalent of 300 international units.

93. [115]

    Professor Carter was of the opinion that a dose of 50 units of insulin would possibly be sufficient to cause the death of an elderly person, while acknowledging there were a number of variables. He was also of the opinion that hypoglycaemia was the direct cause of death of both Ms Darragh and Ms Spencer.

94. [116]

    It was common ground that blood was taken from Ms Darragh 14 hours after death and thereafter analysed in a manner that made the testing for insulin reliable. It was not possible to deduce how much insulin had been injected. Professor Carter opined that there was an exogenous (i.e. external) administration of insulin to Ms Darragh, which caused hypoglycaemia and death. In relation to Ms Spencer, he also opined that there was an exogenous administration of insulin which caused hypoglycaemia and her death.

95. [117]

    Professor Carter was of the opinion that the injections given to the two deceased occurred at a similar time because they died within a close timeframe. That depended on them receiving the same type of insulin. If each were given Mixtard 30/70 then the gap in time was highly likely to be 30 minutes to one hour, taking into account that people had different sensitivities to insulin (T.487).

96. [118]

    In calculating the time of the injection, Professor Carter took into account that there had been no complaint by Ms Darragh at 11pm on 9 May 2014 of having received an injection. He thought that had she received an injection before then, she would have said something about it. Professor Carter opined that with the signs of hypoglycaemia being apparent at 7am, an injection of 30/70 Mixtard would have needed to have been given one to three hours before and no earlier than eight hours before. He was of the opinion that the injection was most likely to have been given between 11pm on 9 May and 4am on 10 May 2014.

97. [119]

    Had a longer lasting insulin been administered, or if an intermediate acting insulin alone was administered, then Ms Darragh could have been injected earlier. With respect to Ms Spencer, Professor Carter opined that the most likely time for the injection of insulin was again between 11pm on 9 May 2014 and 4am on 10 May 2014 (T.496.45).

98. [120]

    Under cross-examination, Professor Carter agreed that it was not possible to accurately estimate a time period when an injection was given, nor the dose that was given. People reacted to the injection of insulin in different ways. Professor Carter agreed that the time of onset would differ if a dose in excess of what was therapeutic was administered.

99. [121]

    In re-examination, Professor Carter said:

100. [122]

     Dr Naren Gunja, an Associate Professor and Senior Specialist in Toxicology at the NSW Poisons Centre and Westmead Hospital gave evidence.

101. [123]

     In his opinion, both Ms Spencer and Ms Darragh were administered external or exogenous insulin that led to their deaths. Had blood samples not been taken promptly, there would have been no evidence of insulin injection. He gave evidence that this was because insulin degrades in the body and so over time it is impossible to detect. He opined that at least 50 units of insulin would be needed to cause the results in the samples taken from Ms Spencer. He noted that symptoms of hypoglycaemia can be mistaken for stroke and that elderly people are more sensitive to exogenous insulin.

102. [124]

     Dr Gunja opined that Ms Darragh and Ms Spencer had fixed pupils at 7am on 10 May 2014 which meant they had irreversible brain damage by then. To have caused that, the insulin injections must have been administered “at least several hours” before.

103. [125]

     He opined that Ms Darragh was injected between 11pm and 5am and Ms Spencer between 10pm and 6am. He based that opinion on external observation rather than toxicology results. He further opined that the timing of the deaths of the deceased suggested administration of insulin at the same time, give or take an hour.

104. [126]

     Under cross-examination, Dr Gunja agreed that there are different types of insulin with different times of onset, peak and duration. Age is a variable factor but the extent of that variability is not exactly known. He agreed that long lasting insulin might have been given on its own well before 10pm on 9 May. The time of injection would in that case be approximately four hours before the onset of symptoms.

105. [127]

     Dr Gunja estimated the quantity of the minimum dose for an elderly person to induce a profound and prolonged hypoglycaemia would be between 100 and 200 units of insulin. Fifty units would be sufficient to cause hypoglycaemia, but to cause death, Dr Gunja opined that at least 100 units would probably be needed.

106. [128]

     Dr Chris Greenway was Ms Darragh’s treating doctor from about 1990. He outlined her medical condition up to the time of her death. Dr Greenway confirmed that Ms Darragh was on a number of different regular medications. She had no symptoms of diabetes and had never been prescribed insulin.

107. [129]

     Dr Colin MacDonald had been Ms Spencer’s treating doctor since 26 February 2014. He outlined Ms Spencer’s medical condition and medications up to her death. Miss Spencer had had a stroke. She had partial paralysis on the left side of her body.

108. [130]

     Dr Jerome Mellor was the treating doctor for a number of residents of St Andrews. On 10 May 2014 at about 7am he received a telephone call from Ms Writer, who reported that Ms Darragh appeared to have had a stroke.

109. [131]

     Dr Mellor was of the view that somebody who had no blood pressure and was unconscious with fixed dilated pupils, had had a catastrophic medical event, and they no longer had blood coursing around their arteries and would likely have severe organ damage. He recommended palliative care and prescribed morphine.

110. [132]

     Dr Mellor received a second telephone call from Nurse Writer at about 9.20am in relation to Ms Spencer. She was also unconscious and appeared to have had a large stroke. Dr Mellor formed a similar opinion to that concerning Ms Darragh. Once again he recommended palliative care and prescribed morphine.

111. [133]

     Dr Mellor was then contacted at around about 11am by Ms Turner and advised of the complaints that Ms Darragh, Ms Spencer and Ms Patterson had made about the applicant. Dr Mellor recommended that Ms Patterson be transferred to Ballina Hospital as a precaution and that Ms Turner contact the police. Dr Mellor also suggested that Ms Darragh and Ms Spencer should be taken to hospital. Dr Mellor then went to St Andrews. When he had arrived at 11.40am, Ms Spencer had already died and Ms Darragh was deeply unconscious. Shortly thereafter, she also died.

112. [134]

     During the course of that morning at about 11.50am, Dr Mellor spoke to Ms Patterson in the dining room. She told him that she had been given Panadol by the applicant at about 1am the previous night.

113. [135]

     Detective Sergeant Darrin Gunn was one of the investigating police officers. He interviewed Ms Patterson on 10 and 22 May 2014. Ms Patterson gave an account of being awoken by the supervisor’s torch and being given Panadol. In the first conversation Ms Patterson told police “they worked out it was 11pm” referring to the time of the administration of the Panadol tablet.

114. [136]

     Detective Gunn gave evidence of a search warrant executed on the applicant’s premises on 15 May 2014. During the course of the execution of that warrant, the applicant was told that the police were investigating the “unexpected and suspicious deaths of Ms Spencer and Ms Darragh at St Andrews”.

115. [137]

     The applicant was not told of the cause of the deaths of the deceased by police.

116. [138]

     Under cross-examination Detective Gunn said that all the sharps bins were searched, as well as the waste bins. He agreed that a test could be undertaken to determine the type of insulin present in blood but that test was not undertaken.

117. [139]

     In re-examination, Detective Gunn gave evidence that he was advised that such testing would not be able to discriminate between endogenous insulin and Mixtard 30/70.

118. [140]

     Detective Gunn produced a spread sheet of swipe cards, which became Exhibit JJ, the purpose of which was to rule out anyone other than an appropriate person having a swipe card to enter St Andrews or the Dianella Ward on 9 and 10 May 2014.

The case for the applicant at trial

1. [141]

   The applicant gave evidence and was the only witness called in her case. She was 49 years of age at the time of trial. She was born in South Africa. She had migrated to Australia in December 2000. In May 2014 she was living in Kingscliff NSW with her three children. She qualified as a nurse in South Africa and after arriving in Australia, she was registered as a nurse in Victoria.

2. [142]

   She gave evidence that as part of her nursing training, she knew of the properties of insulin. She knew that insulin degraded in the blood after death. She knew about the types of needles that were used for the administration of insulin and that they generally did not leave a mark. She was trained to be able to detect the signs of hypoglycaemia and how to use a glucometer. The applicant explained how a glucometer should be used.

3. [143]

   The applicant gave evidence concerning a conversation which she had with AB. AB had been her partner. She did not recall the conversation he had given evidence about, but it was possible that it had occurred. On occasions they would watch shows like “CSI”. When they watched television shows, she would on occasions discuss her nursing knowledge with him if it were relevant to the show.

4. [144]

   The applicant confirmed that on 6 December 2011 the Nursing and Midwifery Board of Australia had made an adverse determination about her and she was reprimanded. There was a determination made by the Board that she would have to satisfy certain conditions in order to be re-registered. As a condition of her future nursing registration, she was to (i) undertake approved education, and (ii) supply satisfactory performance reports from a Director of Nursing every six months for the next 18 months.

5. [145]

   When she applied for her position at St Andrews, the conditions of her nursing registration, as amended, were still in place. She had provided a document of her nursing registration conditions to Ms Turner at the time of her interview. She had informed Ms Turner during her interview that she could only work night shifts due to her parenting responsibilities.

6. [146]

   When she commenced at St Andrews, she was required to perform three “buddy shifts” with a registered nurse, after which she commenced work as a RN on night shifts without supervision.

7. [147]

   She was issued with a swipe card that allowed her access to all the medication rooms, except for those in the hostels, which were on a different system. She had no knowledge that the recording of the card system had been damaged in a lightning strike, although she agreed that she had heard discussions among staff on that matter, but not in any detail.

8. [148]

   Residents at St Andrews used the “bell system” to call for assistance. Staff would be alerted by a light bar in the middle of the passage hall and also by a “flashing” on their nursing phones. Residents would request, for example, assistance to go to the toilet or have the toilet light turned off.

9. [149]

   The frequency of the “call bell” between 10.15pm and midnight would, on average, be at least eight or ten calls an hour.

10. [150]

    There would be a ward round between 1am and 2am at Dianella. After 2am the calling would be less frequent. The frequency increased again at about 4.30am or 5am. There was a scheduled medication round at 6am, although some residents would have scheduled medications at other times. The applicant gave evidence about how scheduled medication for residents was administered.

11. [151]

    As well as a medication round, the applicant would do two incontinence rounds, the first of which was from 1am to 2am. The second was between 5am and 6am. The CSE she was working with would direct her as to which residents needed to be checked. They would try not to wake the residents during these checks. The applicant clarified that there were two rounds in Dianella on the night shift. The first was 1am to 2am and the second was from 5am to 6am. There were no designated medication rounds at night (T900).

12. [152]

    The applicant was taken to Ms Darragh’s Progress Notes (Exhibit N). On 2 May 2014 at 12.11am, the applicant wrote in the progress notes “C/O vulval itch? M/0 to review”. Ms Darragh rang the call bell and asked her for some cream for a vulval itch. The applicant had looked in the bathroom and could not find any cream. She saw some Curash powder, which is an anti-fungal treatment, and gave that to her. Ms Darragh was not happy because she did not have the cream. The applicant informed the morning hand over staff that Ms Darragh had a vulval itch and had asked for cream.

The shift 9/10 May 2014

1. [153]

   The applicant worked from 10.45pm on 9 May 2014 to 6.46am on 10 May 2014. When she arrived, Ms Thompson handed the shift over to her. She then went to the Boronia ward for that handover which was from Ms Lloyd. The applicant waited until after 11pm because the CSE, Ms Edwards, did not commence work until 11pm.

2. [154]

   The applicant remembered giving Ms Patterson a capsule of Panadol. She was giving Ms Carmen Smith Panadol because she had rung for it. The applicant gave Ms Patterson Panadol because she had been told to do so and gave it to her at that time in order not to forget. She had given Ms Patterson Panadol on nights previously but had not on the nights of 6, 7 and 8 May 2014.

3. [155]

   The applicant acknowledged that she had recorded giving Ms Patterson Panadol at 2.30am on 10 May 2014, but did not recall doing so. The applicant explained that she had been confused.

4. [156]

   The applicant said that she first became aware of the complaint made by Ms Patterson on the night of 9 May 2014 when Ms Turner handed her an envelope containing the letter of the complaints (Exhibit G). When she was with Ms Turner, the applicant did not read the letter. She only opened the envelope after the round between 1am to 2am.

5. [157]

   Ms Turner had informed the applicant that she had received two complaints from Ms Darragh and Ms Patterson. Ms Turner also told her that there may be a third complaint, but did not mention who that was. Ms Turner gave her a sealed envelope with a letter and two complaints in it. Ms Turner had directed the applicant not to enter the rooms of Ms Darragh and Ms Patterson alone. The applicant gave Ms Turner a brief version of events about the complaints. Ms Turner responded by saying that they would discuss that on 13 May 2014.

6. [158]

   After the meeting with Ms Turner, the applicant went to Dianella 1 because she had to relieve Ms Ridgeway who had to go to Boronia. While she was in Dianella, the applicant prepared a peg feed, answered lots of call bells and read some emails. She also administered an antibiotic in a puree to Ms Spencer. At around 1am, Ms Ridgeway returned from Boronia. The applicant and Ms Ridgeway checked on Ms Darragh at this time. She was moaning in her sleep. They both thought she was having a nightmare.

7. [159]

   The applicant thought that she had administered medication to Ms Wong before she went to Ms Darragh’s room because she heard moaning. After that the applicant and Ms Ridgway commenced an incontinence round at 1am. The applicant went to Ms Spencer’s room but she did not require to be changed.

8. [160]

   The applicant did not read the contents of the envelope until after 2am because she had to rush back to the Dianella ward to take over from Ms Ridgeway.

9. [161]

   The applicant gave evidence that she read the complaints at about 2.20am. She discussed them with Ms Ridgeway and how best to move Ms Patterson. During this conversation, they were joined by Ms Edwards. The applicant asked about the best way to move Ms Patterson.

10. [162]

    Narelle Edwards offered to assist with moving the residents if called. The applicant told them that Ms Turner had said that she should not go into the rooms of Ms Darragh and Ms Patterson alone. Ms Ridgeway said that the likely outcome of the complaints would just be a reprimand.

11. [163]

    The applicant described her movements from 3.15am. She handed the shift over to Ms Writer.

12. [164]

    The applicant had asked Ms Thompson, on or about 7 May 2014, if there had been any complaints that had been made against her and went through a list of people whom she thought might have complained. They included Rick Mara, Barbara Laaksonen, Marie Darragh and Marjorie Patterson. The applicant explained why she had asked about these people specifically. Her query did not include Ms Spencer.

13. [165]

    The applicant accepted that she had erroneously administered Panadol to Ms Patterson at 2.30am on 9 May and 11pm on 9 May. She explained that she thought it was an as needed order and not regular medication.

14. [166]

    The applicant agreed that she had not administered Cephalexin to Ms Spencer at 6am on 10 May 2014 as she should have, and despite having done so at 6am on 8 May and 9 May and on 9 May at 11.59pm. The applicant could not recall why she had not done so, but thought that there was an issue with the medication sent from the pharmacy.

Events after 10 May

1. [167]

   The applicant telephoned Ms Turner on Monday 12 May in the morning and they spoke generally about the complaints. During that telephone conversation, the applicant told Ms Turner that she was resigning. The applicant explained that she “was feeling overwhelmed at the situation”. The applicant agreed that on 13 May 2014 in a telephone conversation with Ms Turner, she retracted her resignation. During that telephone conversation, the applicant asked Ms Turner the identity of the third complainant. Ms Turner told her it was Ms Spencer. The applicant responded “Issy okay”. Ms Turner undertook to forward the applicant the details of the third complaint.

2. [168]

   The applicant denied killing the two deceased.

3. [169]

   Under cross-examination, the applicant agreed that she was trained in recognising the signs of hypoglycaemia, that it can cause death and that it could be mistaken for a stroke or heart attack. The applicant agreed that she was taught that insulin degrades in blood after death. The Crown suggested to her that she chose to inject the insulin because she thought it was a method that would not be detected, which the applicant denied.

4. [170]

   The applicant agreed that if something unusual arose, it should be put in the progress notes. That included anomalies in a patient’s medication regime. These types of matters could be referred to at hand over. The applicant saw no one suspicious during her shift on 9 May 2014 to 10 May 2014. She mentioned that Ms Turner had arrived to give her the complaints letter.

5. [171]

   The applicant agreed that she made no notes in Ms Spencer’s progress notes during her shift from 9 May – 10 May. She gave Cephalexin to Ms Spencer at 11.59pm on 9 May. To do so, she crushed that tablet into a puree. When she did so, she noticed nothing out of the ordinary in Ms Spencer’s condition.

6. [172]

   The applicant next checked on Ms Spencer at about 1am and at about 5am with no apparent change in her condition.

7. [173]

   The applicant agreed that she was scheduled to give Ms Spencer her next antibiotic at 6am. She did not do so because either there were only a few tablets available from the “stat container”, or the medication had run out. The applicant agreed she had not noted in the progress notes that she had not given Ms Spencer her medication at 6am and could not recall whether she mentioned her failure to give Ms Spencer an antibiotic at the morning hand over.

8. [174]

   The Crown put to the applicant that by 6am Ms Spencer would have been severely hypoglycaemic and it was not possible for her to give that medication. The applicant responded that she did not know her condition at the time and if, at 6am, she found Ms Spencer to be hypoglycaemic and comatose, she would have done something about it as a registered nurse.

9. [175]

   The applicant rejected the proposition that she gave Ms Spencer a Temazepam tablet that night to make sure she slept through so she could administer an insulin injection.

10. [176]

    The applicant agreed that she was alone in Dianella between midnight and 1am. She had access to the medication room in Dianella 1. She was the only person on that shift with access to the medication room. She had access to insulin. She had access to syringes.

11. [177]

    The applicant gave evidence that she told Ms Ridgeway that Ms Spencer was wearing the day pad and it was up to Ms Ridgeway to decide whether she was going to leave her or change her. Ms Ridgeway decided to leave her. The Crown Prosecutor suggested that in fact she told Ms Ridgeway “Issy's all right. She’s in a blue pad, but she's okay” and that by this she was directing Ms Ridgeway not to go in and check on Ms Spencer. The applicant rejected this proposition.

12. [178]

    The Crown put to the applicant that she believed that the third complaint was from Ms Spencer. The applicant denied this.

13. [179]

    The following exchange then occurred between the Crown and the applicant:

14. [180]

    The Crown again put to the applicant that she had the opportunity to administer insulin to Ms Darragh and Ms Spencer because she was alone in Dianella, had access to the medication room, had access to insulin and had access to “syringes that you thought would not leave a detectable mark”. The applicant agreed with those propositions and that she had the opportunity to administer insulin in the sense that “I was there, yes”. The applicant also responded that:

15. [181]

    The applicant agreed that she had remained in the Boronia ward until about 11pm when Narelle Edwards arrived for her hand over and that she was still in Boronia when Wendy Turner came to see her at 11.10pm. The applicant agreed that the two of them went to Ms Turner’s office where she was told of the complaints by Ms Darragh and Ms Patterson. That meeting took about 20 minutes. The applicant agreed that Ms Turner told her that she should not approach Ms Darragh and Ms Patterson and that if she should need to attend to them at any time during the night, that she should take a care staff member with her.

16. [182]

    It was put to the applicant that she could not have administered Panadol to Ms Patterson at 11pm because she had her meeting with Ms Turner at 11pm. The applicant responded that the time of 11pm, as recorded as the time she administered Panadol to Ms Patterson was correct, and the times for the hand over from Narelle Edwards and meeting with Ms Turner were estimates. She administered the Panadol to Ms Patterson before her meeting with Ms Turner. The Crown suggested that she had written “11” incorrectly, deliberately, to make it appear as though that administration was before the meeting with Ms Turner. The applicant rejected that proposition.

17. [183]

    The applicant rejected the Crown’s assertion that she thought it would be likely that further complaints, if substantiated, would end her nursing career. The applicant rejected the proposition that she decided that the solution to the problem that confronted her on the night of Friday 9 May 2014, was to eliminate the source of the complaints. The applicant rejected the proposition that she used the method of insulin injection because she thought it would not be detected. The applicant agreed that Ms Ridgeway had left her alone at Dianella from midnight for up to an hour. She agreed that she knew there was insulin in the fridge in the medication room in Dianella 1 and that she had access to the insulin and that there were syringes to use in the medication room.

18. [184]

    The applicant rejected the Crown’s suggestion that she injected Ms Spencer and Ms Darragh with insulin. She denied that she took some of Mr Capewell’s partially used ampoule of “Mixtard 30/70” insulin from the locked medication room in Dianella 1, and used it to inject Miss Spencer and Miss Darragh.

19. [185]

    In re-examination, the applicant said that she did not receive the written complaint concerning Ms Spencer until 13 May 2014.

THE CONVICTION APPEAL

1. [186]

   The applicant relied upon twenty grounds of appeal against her conviction. Many of those grounds raise the same issue. For convenience, I have endeavoured to group together those grounds of appeal which raise the same, or similar, issues.

Ground 19 – The trial miscarried as counsel failed to implement the appellant's real instructions to contest the reliability and credibility of the witness [AB] in cross-examination.

1. [187]

   The background to these Grounds of Appeal was an affidavit of the applicant, sworn 4 July 2018, which included the following:

2. [188]

   There was further material in the affidavit concerning information which the applicant had provided to her legal advisers to the effect that [AB] was a drug user and a supplier of drugs and had a criminal record. Later in the affidavit, the applicant deposed:

3. [189]

   Those assertions were denied by both the barrister and the solicitor.

4. [190]

   Defence counsel at trial, Mr Edwards, in his affidavit sworn 13 October 2018, said:

5. [191]

   An affidavit was affirmed by Mr Blair, the applicant’s previous solicitor, on 22 October 2018. In that affidavit, Mr Blair said:

6. [192]

   Without going into detail, the statement of [AB] annexed to the affidavit of Mr Blair is replete with material which would have been extremely damaging to the applicant’s credit had all, or even part, of it been given as evidence before the jury. At [264] hereof part of the statement is set out.

7. [193]

   As a preliminary matter in the appeal, evidence was given by the applicant and Messrs Edwards and Blair and they were cross-examined.

8. [194]

   In her evidence-in-chief in the appeal, the applicant sought to explain the handwritten notations which she had made on the documents MB2 and MB3, identified by Mr Blair in his affidavit. The effect of that evidence was that the applicant believed that [AB’s] statement could be challenged because his description of the furniture and its location in her house was incorrect. Another challenge was to the effect that because [AB] had sought to minimise the seriousness of his drug supply offence by saying that he was “stoned” when it occurred, his evidence concerning the conversation/admissions and other matters could not be accepted because by implication he was probably “stoned” at the time.

9. [195]

   The applicant was cross-examined on her affidavit to the effect that nowhere in her handwritten comments relating to [AB’s] statement, nor in her evidence at trial, did she ever say in terms that the conversation about insulin did not occur (at [179] hereof). Despite this, the applicant maintained under cross-examination in the appeal that the conversation with [AB] about insulin did not occur (Appeal transcript, 11.14, 11.35, 11.40, 11.44). This response was different to the evidence which she gave at trial.

10. [196]

    In the appeal the following evidence was given by the applicant:

11. [197]

    The difficulty for the applicant with those three answers was that she had either perjured herself at trial or perjured herself during the hearing of the appeal.

12. [198]

    On the issue of whether the conversation with [AB] concerning insulin took place, the applicant’s answers on the appeal are to be contrasted with her answers at trial. At trial she consistently said that she could not remember the conversation. On the appeal, she initially denied that any such conversation had taken place and then slightly modified that answer before again denying that the conversation took place.

13. [199]

    There were further answers in cross-examination on the appeal, which again raised the question of whether the applicant was telling lies at trial or was telling lies on the appeal:

14. [200]

    Further background is provided by the judgment of Garling J of 12 October 2016 (R v Haines [2016] NSWSC 1824) which relates to the disputed conversation between [AB] and the applicant which was said to have occurred when they were watching a “true crime” program on television, which involved a murder.

15. [201]

    Mr Edwards, in pre-trial argument, relying upon s 137 of the Evidence Act 1995 (the Act), had objected to the conversation in its entirety. Having heard some argument, his Honour made it clear that he was going to reject the words “a perfect murder” as used in the statement from [AB] but otherwise it was apparent that his Honour was likely to admit substantial parts of the conversation. Before making a final ruling, the trial judge suggested that the parties agree on what evidence should be given without it being necessary for the court to make a ruling. Eventually that is what is occurred. An agreement was reached between the Crown and the defence as to what parts of the conversation and the statement of [AB] would be led in evidence at the trial. It was this agreement which the applicant says was entered into contrary to her instructions.

16. [202]

    Accordingly, the issues raised in the affidavits and evidence given before this Court should be assessed against that background.

17. [203]

    We found Mr Edwards to be a forthright and honest witness. His recollection of what occurred in pre-trial argument and at the trial was very good and where he had no clear recollection, this was frankly conceded. His evidence was fully consistent with the transcript of what occurred before Garling J on 19 September and 11 October 2016 and with his Honour’s judgment. We accept not only that Mr Edwards was a truthful witness but he was also a reliable one.

18. [204]

    Similar comments can be made about the solicitor Mr Blair although his recollection of the detail of what occurred in the pre-trial proceedings before Garling J was not as good as that of Mr Edwards. Nevertheless, like Mr Edwards, he also was prepared to concede where appropriate that he had no particular recollection of events. We found his evidence to be truthful and reliable.

19. [205]

    The evidence of Messrs Blair and Edwards is in stark contrast to that of the applicant. Her evidence of not understanding what she was being told, particularly as to what was meant by “agreed facts” sits uneasily with instructions which she gave in relation to a s 191 notice dealing with the background to the disciplinary problems which she had experienced as a registered nurse in Victoria. Most importantly, however, on the issue of whether the conversation with [AB] took place and the extent of her knowledge of the effects and properties of insulin, her evidence in the appeal was inconsistent with the evidence which she gave at trial.

20. [206]

    Her explanation for those inconsistencies was that she was forced and intimidated by Mr Edwards into deliberately giving false evidence at trial. The comments and intimidatory remarks which she attributes to Mr Edwards are quite inconsistent with our assessment of his conduct of the trial and of his evidence. Our firm conclusion in relation to Mr Edwards is that of a hardworking, conscientious barrister, who would not have made the intimidatory remarks which the applicant has attributed to him.

21. [207]

    The conclusion we have reached is that the applicant is an unreliable witness and where her testimony conflicts with that of Messrs Edwards and Blair, we accept their evidence and reject hers.

22. [208]

    There is another consideration which does not depend upon the credit of the witnesses who gave evidence in the appeal. It relates to the appropriateness of the decision which was taken as to what parts of [AB’s] statement generally and of the particular conversation should be led in evidence at the trial. The fact that Mr Edwards was able to persuade the Crown to confine the evidence to one incident was very much to the applicant’s advantage. That is particularly so when one has regard to the likely evidence of [AB] had the agreement not been made. This evidence was likely to include further references to killing using insulin and the euthanasia of old people. Such evidence would have been devastating to the defence. As it was, there was some benefit for the applicant in the evidence which was ultimately given in that it was capable of being substantially dismissed as the applicant showing off her medical knowledge on one occasion, rather than being indicative of a more sinister state of mind.

23. [209]

    Further aspects of what occurred in the pre-trial hearing, which took place before Garling J on 19 September and 11 October 2016, are set out in the discussion of Grounds 10 and 18 later in these reasons. That discussion and those conclusions should be read with the consideration of this ground of appeal.

24. [210]

    Accordingly, the forensic decision to agree to parts of [AB’s] evidence being led at trial needs to be looked at against the thrust of his Honour’s interlocutory judgment, which raised the likelihood that his Honour was going to admit substantial parts of, not only the conversation between [AB] and the applicant but also other parts of [AB’s] statement. Given the potential danger for the applicant of [AB’s] evidence, there was very good reason for Mr Edwards to agree to admitting the evidence and to not cross-examining him on any issue.

25. [211]

    These grounds of appeal have not been made out.

Ground 15 – The trial Judge erred in failing to warn the jury against a propensity reasoning in circumstances where two counts of murder were heard together and where the provisions of Part 3.6 of the Evidence Act were not implemented and caused a serious miscarriage of justice such that the trial miscarried.

1. [212]

   The above Grounds of Appeal essentially raise the same issue. The applicant submits that although a coincidence notice was served by the Crown, and tendency and coincidence reasoning was relied upon by the Crown, the Crown never sought leave to rely upon the coincidence notice.

2. [213]

   The form of the coincidence notice was:

3. [214]

   The applicant submitted that the prejudice that flowed from the conduct of the trial, according to coincidence circumstances, cannot be overstated. She submitted that the necessity for the trial judge to give the standard direction where there is more than one count, was so embedded in the law that its failure to be given itself constituted a miscarriage of justice (R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at 186).

4. [215]

   The applicant submitted that the trial judge erred and the trial miscarried because the trial judge in summing up treated the two counts as cross-admissible and did not correct that implicit direction. This involved a failure to properly direct the jury and accordingly, the jury were left to speculate as to what evidence was admissible in respect of which count. This was exacerbated by the evidence of motive, which the Crown adduced in respect of both counts. The jury would have used propensity reasoning as a result of the lack of direction and correction.

5. [216]

   The applicant submitted that the trial judge erred and the trial miscarried because the trial judge did not direct the jury that in returning verdicts, they must give “separate consideration” to the circumstances of each count. Accordingly, when the proposed questions were put to the jury were put for their consideration, they were not warned or advised that they might find the applicant guilty of one offence, but might find her not guilty of the other offence. The applicant submitted that the charges did not stand or fall together (R v Tedesco (2003) 85 SASR 66).

Consideration

1. [217]

   A fundamental problem for the applicant in raising this point is that it was not taken at trial, nor were any submissions made in relation to it. Significantly, at trial there was never an issue to the effect that the same person did not commit both killings. It seems to have been assumed by both sides at trial that the same person committed the offences and the issue was – who was that person?

2. [218]

   In addition, it is apparent from the way in which the trial proceeded that the two murders were treated as forming part of a single transaction. Their relevance to each other, and their interdependence, were not put forward on the basis of improbability reasoning, pursuant to s 98 of the Evidence Act.

3. [219]

   Transaction evidence was discussed in O’Leary v The King [1946] HCA 44; 73 CLR 566 where Dixon J said at 577-578:

4. [220]

   As was put in the course of argument by Button J:

5. [221]

   In O’Leary v The King, Dixon J concluded, following the above analysis, that the evidence of O’Leary’s rampage was admissible to prove that he killed the deceased.

6. [222]

   In R v Adam [1999] NSWCCA 189; 106 A Crim R 510 at [26] this Court (Spigelman CJ, James and Bell JJ) decided that the principle of admissibility of evidence stated in O’Leary v The King had not been abolished by the Evidence Act. At [26] their Honours said:

7. [223]

   At [27] the Court went on to assess the evidence said to have been transaction evidence:

8. [224]

   Transaction evidence is therefore evidence of a connected course of conduct. It is to be distinguished from evidence that goes to prove an accused person had a continuing state of mind.

9. [225]

   R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304 McColl JA (Studdert and Howie JJ agreeing) at [126]-[128] followed both R v Adam and R v Player [2000] NSWCCA 123 and noted that transaction evidence was different to evidence that went to an accused’s state of mind. Nor was it tendency evidence:

10. [226]

    Transaction evidence is admissible pursuant to s 55 of the Evidence Act as noted above. Transaction evidence is not used to prove that a particular person did a particular act or had a particular state of mind on the basis that it is improbable that two or more related events occurred coincidentally. Where there is one transaction, “two or more related events” do not exist.

11. [227]

    The point raised in Ground 5, to the effect that the trial miscarried because the trial judge failed to warn the jury in firm and unambiguous terms that each count should be looked at separately, has no application to the facts of this case. The way in which this matter was conducted involved the two murders being part of a single transaction. The downside for the Crown, of course, was that if the jury were not satisfied beyond reasonable doubt that the applicant had committed one of the murders, it could not as a matter of logic find that the applicant committed the other murder.

12. [228]

    Despite the applicant’s submissions that tendency and coincidence reasoning were used to link the murders, that was not the way in which the trial was conducted. Accordingly, there was no obligation on the part of the trial judge to direct the jury specifically not to rely upon propensity or coincidence reasoning. Because the two offences were treated as part of a single transaction, there was no difficulty in evidence relating to one murder being admissible in relation to the other.

13. [229]

    A further indication that it was open to the Crown to treat the two murders as part of a single transaction, was that each murder could not truly be understood without reference to the evidence of the other. Had the trials of the two murders been separated (as the applicant submits), then the Crown would not have been able to explain why the death of Ms Darragh did not escape notice, i.e. why it was not as undetectable as the applicant claimed a death by insulin would be. A consideration of the movements of the applicant on the night when she was alleged to have committed the two murders, could not ignore that on the Crown case she had to have gone into two rooms and injected two patients.

14. [230]

    As indicated above, it is of considerable significance that the case that was put on behalf of the applicant did not take issue with the Crown’s fundamental submission that the two deceased had been killed by the same person. Defence counsel submitted in his closing address that motive was an essential part of the Crown case and that the lack of evidence that the applicant knew that Ms Spencer had made a complaint against her substantially weakened the strength of the Crown case. In doing so, defence counsel was putting to the jury the proposition that if they were not satisfied beyond reasonable doubt that the applicant had murdered Ms Spencer, then they could not find that she had murdered Ms Darragh.

15. [231]

    It follows, therefore, that the evidence relating to each count was admissible in the trial of the other count and that the particular facts of this case did not require resolution by reliance upon coincidence evidence or tendency reasoning.

16. [232]

    The Crown did not use the evidence of the two murders as coincidence evidence. In the first pre-trial hearing on 17 June 2016, the Crown raised the issue of whether it would rely upon improbability reasoning (Transcript, 17 June 2016 at 6.16-35). The Crown noted that the alternative was to contend that the two murders formed part of one transaction. The trial judge queried whether a coincidence notice might be served to avoid doubt as to the nature of that evidence. However, service of a coincidence evidence notice would not have been sufficient. To pursue that matter, the Crown would have had to have sought rulings from the trial judge on s 98(1)(b) and 101 of the Evidence Act. This was clearly not done, nor was it necessary, given the way in which the Crown presented its case.

17. [233]

    Despite what the Crown said on 16 September 2016, the date of the coincidence notice, the Crown did not present a case based on coincidence evidence. The Crown case was circumstantial. It relied on motive and opportunity as the Crown Prosecutor outlined in his opening (T.43.20).

18. [234]

    The Crown submitted in terms that the same person must have murdered Ms Darragh and Ms Spencer because the circumstances led to such a conclusion. This arose because their deaths were part of the one transaction. The Crown then contended that from all the circumstances, it was the applicant who murdered each of them.

19. [235]

    That approach can be seen in the closing address of the Crown. There, he firstly submitted to the jury that there was what he referred to as a link between the two deaths (T.993.28-1000.1). He then submitted that they must have been injected with insulin by the same person. He then went on to argue that the applicant was linked to the deaths through motive and opportunity. He summarised the Crown case in the following way:

20. [236]

    In a case where the Crown relies upon an accused’s motive to commit an offence and the opportunity to do so, consideration of the probability of the coincidence that an alternative suspect committed the offence often arises. The Crown used that method of argument in his closing address (T.1000.4; T.1013.34). To do so was not to employ reasoning of the type envisaged by s 98 of the Evidence Act. In putting those submissions, the Crown was doing no more than establishing its position beyond reasonable doubt by removing from consideration hypotheses inconsistent with a guilty verdict.

21. [237]

    In R v Gibbs [2004] ACTSC 63; 146 A Crim R 503 at [14]-[15] Gray J accepted that coincidence evidence could be used to prove that the same unknown person committed two acts on separate days. On the facts of that case, that was an entirely orthodox approach. In this case, had the two deceased died or been injected on separate days, it may well be that the Crown would have been required to adopt coincidence reasoning to prove that the same unknown person, or indeed the applicant, caused both of their deaths. That, however, is a hypothetical proposition and is not the case under consideration here.

22. [238]

    Importantly, there was no objection to the course the Crown took, or the submissions of the Crown, in his closing address. Rule 4 of the Criminal Appeal Rules applies. In any event, for the reasons set out above, even if leave were given to raise this objection, the grounds of appeal have not been made out.

Ground 3 – The trial miscarried insofar as the two counts of murder were heard together without the court dispensing with notice requirements under s 100(2) of the Evidence Act 1995 (NSW).

1. [239]

   The applicant accepted that at no stage was there an application for separate trials made on her behalf. The applicant submitted that as a result, the trial ran by default on a single indictment. The applicant submitted that although there was some commonality of evidence, it was not a matter where the inevitability of a joint trial on a single indictment would have followed as a matter of course.

2. [240]

   The applicant submitted that the integrity of the trial was compromised by the failure of the trial judge to inform the jury during the trial and in summing up that the evidence in the two counts ought be segregated one from the other and to have required the Crown to assist the jury in that regard. The applicant submitted that the trial ran erroneously on an assumption that the evidence in one count was relevant to the evidence in the other count in all respects. The applicant submitted that this gave rise to a fundamental flaw which caused the trial to seriously miscarry.

Consideration

1. [241]

   These grounds, as did the earlier grounds considered, fail to have regard to the premise accepted by both sides as underpinning the trial, i.e. that the same person murdered the two deceased. Once the implications of that are appreciated, there was no error or miscarriage of justice in the two counts of murder being alleged in the same indictment and being heard together.

2. [242]

   Section 29(1) of the Criminal Procedure Act 1986 (NSW) allows a court to hear and determine proceedings relating to two or more offences alleged to have been committed by the same accused person where the offences arise from the same set of circumstances, or the offences form part of a series of offences of the same or similar character. Section 29 provides:

3. [243]

   In this case, the two counts of murder arose out of the same transaction or “same set of circumstances”. They also constituted a series of offences of the same or a similar character, although there is no need to resort to that means of joinder. The required nexus between the two counts was that the evidence relating to one death was admissible in the trial of the other (R v Kray [1970] 1 QB 125 at 130-131; Ludlow v Metropolitan Police Commissioner [1971] AC 29 at 39; BJS v R [2011] NSWCCA 239 at [8]).

4. [244]

   It is true that s 29(3) provides that “… proceedings related to 2 or more offences … may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.” It is also accepted that an accused may rely on s 21 of the Criminal Procedure Act which provides a discretion to order a separate trial of any count or counts where an accused person might be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment or where for any other reason, it is desirable that the accused person be tried separately. For example, if the evidence of one murder was not admissible in the trial of the other murder, then grounds for a separate trial would exist. In this case, however, cross admissibility followed from there being one transaction and the joinder of the two counts on the indictment was justified by this.

5. [245]

   Ground 3 incorrectly assumes that the evidence of the two counts of murder could only be cross admissible pursuant to s 98 of the Evidence Act. It follows that the two counts of murder were properly joined. There was no objection to the joinder. Rule 4 of the Criminal Appeal Rules applies. In any event, even if leave were to be granted, Grounds of Appeal 2 and 3 have not been made out.

Ground 16 – The legal representatives failed to seek a separate trial on each count which the trial judge would have considered according to law and granted which caused a miscarriage of justice such that the trial miscarried.

1. [246]

   The applicant submitted that the proper course for counsel at the pre-trial hearing was to object to the indictment containing two counts of murder and to move that the counts be separated.

Consideration

1. [247]

   Implicit in the submission in support of this ground of appeal is an acceptance that no application to sever the two counts was ever made.

2. [248]

   This Court (Hoeben CJ at CL; Leeming JA and Beech-Jones J) in Matthews v R [2013] NSWCCA 187 at [62] summarised the principles applicable to a ground of appeal that alleges a miscarriage of justice from the conduct of counsel.

3. [249]

   It is not the conduct of counsel per se that is in issue but “whether the applicant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the applicant has lost a chance of acquittal that was fairly open” (N Adams J, with whom Hoeben CJ at CL and Campbell J agreed in Langelaar v R [2016] NSWCCA 143 at [71]).

4. [250]

   This is not a case where if there were a failure by defence counsel, it was a failure of such a nature that of itself it might render the trial unfair (Nudd v R [2006]; HCA 9; 80 ALJR 614 at [19] per Gleeson CJ and [87] per Kirby J). On the contrary, as this Court explained in Matthews v R:

5. [251]

   When considering what did or did not occur at trial, an appellate court needs to ask could there be any reasonable explanation for the decision by trial counsel that is called into question by a ground of appeal (TKWJ v R [2002] HCA 46; 212 CLR 124 per Hayne and Gummow JJ at [24]). Even if the decision made by trial counsel appears to have not been carefully considered, was unwise or produced consequences which operated to the disadvantage of the applicant, the trial will not necessarily be unfair nor will there be a miscarriage of justice (TKWJ v R per Gleeson CJ at [16]-[17], McHugh J at [95]).

6. [252]

   In Alkhair v R [2016] NSWCCA 4 Macfarlan JA (Rothman and Bellew JJ agreeing) at [31] drew from the authorities the following principles:

7. [253]

   In construing such a ground of appeal, the focus of attention should be on the objective features of the trial process. The occurrence of the two murders as one transaction and their cross admissibility was obvious. Further, as noted above, defence counsel took advantage of the two counts being heard together. The failure by defence counsel to apply to have separate trials is rationally explicable. Moreover, given the particular facts of this case, the prospects of successfully applying for separate trials could only be described as remote. It follows, therefore, that a miscarriage of justice did not result from an application for separate trials not being made because such an application would not have succeeded. This ground of appeal should be dismissed.

Ground 14 – The trial judge's summing up erred in failing to warn the jury against using evidence in respect of one count as evidence in the other count.

1. [254]

   The applicant submitted that the trial judge erred in failing to specifically isolate the evidence which the jury might consider in respect of each individual count, together with the appropriate direction as to the legal principles involved. The applicant submitted that each count required the trial judge to isolate the proper admissible evidence and to direct against propensity reasoning. The applicant submitted that the trial judge should have separately directed the jury as to fact finding and how to reason if one count was proved or not proved.

2. [255]

   The applicant submitted that in a case such as this with multiple counts (not involving cross admissibility) the trial judge should have directed that if the jury decided to convict on one count, they should put that conviction out of their minds and consider the remaining count afresh by reference only to the evidence relevant to that count.

Consideration

1. [256]

   The fallacy in this approach has already been discussed in relation to other grounds of appeal. Once it is understood that the trial proceeded on the basis that the one person had committed both murders, the need for the sort of direction raised by these grounds of appeal did not arise.

2. [257]

   In any event, the trial judge was not asked to give such a warning or direction. The cross admissibility of the evidence relating to the two murders meant that such warnings or directions were not appropriate. Moreover, because of the manner in which both counsel approached and conducted the trial, such a direction could have been misleading.

3. [258]

   No objection to this effect was raised at trial and accordingly rule 4 of the Criminal Appeal Rules applies. These grounds have not been made out and leave to rely upon them should be refused.

Ground 10 – The trial Judge erred in allowing evidence of conversations as “admissions” of [AB] and the accused at all or in part, as set out in paragraph 15 of [AB's] statement. In allowing the evidence to be led, the trial judge erred in failing to address the proper test for admissions under s 90 (Evidence Act) and omitting any reference to such section in his consideration of the evidence.

1. [259]

   The applicant submitted that the evidence of [AB] was wrongfully admitted. She submitted that the Crown case statement did not contain any reference to this important witness and the proposed evidence was not served on the defence until 19 September 2016.

2. [260]

   The applicant submitted that there was a long and complicated history of Family Law proceedings between [AB] and the applicant involving the custody of their child. The applicant submitted that [AB] had an extremely strong motive to lie in order to seek her conviction so as to gain custody of the child. The applicant submitted that the late service of the statement prejudiced her insofar as the trial judge could not be apprised properly of the background to the statement and, in effect, her counsel was “ambushed” by the late service of the statement.

3. [261]

   The applicant submitted that the trial judge had erred in failing to address the proper test under s 90 of the Evidence Act and only applied s 137, thereby depriving her of a fair trial according to law. The applicant submitted that the conduct of the trial thereafter was such that the trial miscarried in that evidence was wrongly admitted and she was denied the opportunity to address on the threshold issue of s 90. The applicant submitted that this Court could not speculate on the outcome should s 90 have been properly applied.

4. [262]

   The applicant submitted that the trial judge erred in failing to make a finding under s 189(1)(a) of the Evidence Act and should have conducted an inquiry pursuant to that section.

5. [263]

   The applicant submitted that the trial judge erred in not compelling a voir dire hearing under s 189 so as to allow defence counsel to properly assess the admissibility of the statement and make appropriate submissions as to the trial judge’s exercise of his discretion.

Consideration

1. [264]

   The statement of [AB] referred to in the ground of appeal was dated 19 August 2014. Paragraph 15 set out the conversation between [AB] and the applicant in relation to which evidence was given by both [AB] and the applicant at trial. In its original form the statement was as follows:

2. [265]

   The first observation which can be made in relation to paragraph 15 of the statement is that the applicant’s admission was unsolicited and purely hypothetical. It was directed to a fictional state of affairs.

3. [266]

   Section 90 of the Evidence Act provides:

4. [267]

   As discussed earlier in this judgment, this submission was the subject of pre-trial argument (at [200]-[201] and [292] hereof). The trial judge ruled that subject to references to “the perfect murder” being removed or amended to something more anodyne, the conversation was admissible. No application in terms was made pursuant to s 90 of the Evidence Act. Accordingly, there was no error by the trial judge in not excluding the admission by the applicant to [AB] pursuant to that section. Moreover, as no application was made, r 4 of the Criminal Appeal Rules applies and the applicant requires leave to rely upon this ground.

5. [268]

   Even if the applicant had raised an objection under s 90 of the Evidence Act, that objection was most unlikely to have been successful.

6. [269]

   The discretion to refuse to admit evidence of an admission sought to be adduced by the Crown pursuant to s 90 depends on a trial judge concluding that to admit the evidence would be unfair to an accused in all the circumstances. The focus of s 90 is on the unfairness of the use of the admission in the trial (Em v The Queen [2007] HCA 46; 232 CLR 67 at [107]).

7. [270]

   The scope of the discretion cannot be defined exhaustively (Em v The Queen at [109]). The reliability of the admission is a factor but not an exclusive factor affecting the unfairness of its use. Its application is likely to be “highly fact specific” (Em v The Queen at [56]).

8. [271]

   The unfairness associated with the use of an admission might extend to forensic disadvantages that an accused might suffer at trial. That is not the case here. The kind of problems which might arise were discussed by the High Court in R v Swaffield [1998] HCA 1; 192 CLR 159 at [78] where Toohey Gaudron and Gummow JJ said with respect to the unfairness discretion at common law:

9. [272]

   As was made clear by Basten JA and Simpson J (with whom Hoeben CJ at CL agreed on this point) in R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [74] and [153]-[154] the application of the Evidence Act cannot of itself cause unfairness:

10. [273]

    There was nothing unfair about the admissions in this case. They were not, for example, given by the applicant in the course of a police interview that was in some way deserving of disapproval. The applicant spoke spontaneously in [AB’s] presence. There was nothing inherent in the admission to suggest a lack of reliability. In fact the applicant’s evidence at trial supported the reliability of the admission.

11. [274]

    In the course of argument in the appeal, the applicant submitted that [AB’s] statement and evidence was unreliable because in his criminal trial for drug supply, he had sought to explain his actions on the basis that he was “stoned” when the offending conduct occurred. By reference to that evidence, the applicant submitted that his evidence at trial, and as set out in the statement, was unreliable because he was probably “stoned” at the time of the conversation as well.

12. [275]

    That submission is misconceived. What [AB] said on another occasion to explain criminal conduct, without more, has no relevance to the reliability of his evidence as to the admission. Accordingly, no basis for asserting unreliability on the part of AB was or has been established. There was no unfairness in the Crown making use of the admission at trial.

13. [276]

    The applicant alleges an error on the part of the trial judge in there not being a voir dire pursuant to s 189(1) of the Evidence Act. Section 189 relevantly provides:

14. [277]

    Section 189 of the Evidence Act provides for a procedure where there is a voir dire and in particular, whether a jury should be present in court when the voir dire takes place. Section 189(1) of the Evidence Act merely provides that a particular issue is a “preliminary question”. It has no effect on whether a voir dire should be held.

15. [278]

    Whether there should be a voir dire is determined by the issues at trial. No accused has an unqualified right to a voir dire: Lars et al (1994) 73 A Crim R 91. This Court said in Lars at 114:

16. [279]

    Further in Bin Sulaeman v R [2013] NSWCCA 283 at [133] R A Hulme J (with whom Beazley P and Bellew J agreed) said:

17. [280]

    The admissibility of paragraph 15 of [AB’s] statement was determined pursuant to s 189(2) of the Evidence Act. There was no fact required to be decided as part of the decision as to the admissibility of the alleged admission. Accordingly, the applicant’s reference to s 189(1) in her submission is in error. There was a voir dire, as provided for by s 189(2), and the submission that the trial judge should have compelled a voir dire should be rejected. On the facts of this case, there was no need for [AB] to be called and no error was displayed by counsel, or the trial judge, in [AB] not being examined on the voir dire. When regard is had to the applicant’s evidence at trial, where she at no time said that the admission was not made, the need to cross-examine [AB] largely disappears. Her position was that she could not remember having made the statements attributed to her.

18. [281]

    [AB’s] statement was dated 19 August 2014. It is clear from the relevant transcripts that defence counsel was aware of [AB] and the statement at the time of the pre-trial hearing of 17 June 2016. At no time did he say that he had been surprised or otherwise disadvantaged by the service of the statement. It should also be noted that the applicant made it clear in her affidavit that she was aware of [AB’s] criminal history and was aware of the legal matters which were operative as between herself and [AB] in the Family Court and the Victorian Magistrates Court (applicant’s affidavit [14]-[17]). In the pre-trial hearing of 17 June 2016 defence counsel noted that subpoenas would be sent to “undermine the credibility of Mr [AB]” (Transcript, 17 June 2016 at 14.29-.36).

19. [282]

    Against that background, and without any further evidence in support, it is not open to the applicant to submit that there was a lack of disclosure to such an extent that her former legal representatives were “ambushed”. There is nothing in the record of the trial to confirm such a submission. There was no complaint at any time in the proceedings by the applicant’s legal advisers to that effect.

Ground 18 – The trial miscarried as the legal representatives failed to seek exclusion of the evidence of the witness [AB] and failed to seek a voir dire hearing under s 189 of the Evidence Act to allow the court to properly assess the admissibility and any the discretion of the evidence of Mr [AB].

1. [283]

   The applicant submitted that the failure of her legal representatives to seek exclusion of the evidence, pursuant to the Evidence Act, meant that the court did not exercise the powers and discretion which it had to properly assess whether the trial could fairly continue without an opportunity to examine [AB] without the jury. This was because the context of the statement of [AB] omitted relevant evidence as to his incarceration for drug trafficking and the revealing of a motive to lie.

Consideration

1. [284]

   This ground raises the same considerations as Ground 16 and the cases referred to there are relevant to this ground. Consideration of this ground also requires a consideration of s 90 of the Evidence Act and the conclusions in relation to the “proper test” for s 90 in relation to Ground 10 are relevant.

2. [285]

   An application was made before trial for the exclusion of the whole of the conversation between [AB] and the applicant, pursuant to s 137 of the Evidence Act. Insofar as Ground 18 alleges error in the applicant’s legal representatives failing to seek the exclusion of [AB’s] statement, it fails to take that application into account.

3. [286]

   In addition, the value of the admission to the Crown case is somewhat over-stated by the applicant in her submissions. The use of the admission was explained by the Crown as follows:

4. [287]

   Moreover, [AB] thought that the conversation, which included the admission, only revealed the applicant’s legitimate medical knowledge. The applicant had admitted in her own evidence that she had such knowledge because of her nursing training. Importantly, the applicant had no memory of the conversation with [AB]. In those circumstances, she was not able to and did not challenge the veracity of [AB’s] statement.

5. [288]

   The burden was on the applicant to establish unfairness under s 90. By comparison, the Crown’s application with respect to the same evidence, pursuant to s 137 of the Evidence Act, cast the burden on the Crown to establish admissibility. As indicated by his judgment as to the admissibility of the conversation, the trial judge was satisfied that the Crown had discharged that onus.

6. [289]

   There is nothing in the applicant’s affidavit of 2 July 2018 which provides anything in addition to the record of the trial which would support an application pursuant to s 90. Had there been cross-examination of [AB] regarding his credit on the matters set out in the applicant’s affidavit, then the applicant herself would have been open to an application for leave to cross-examine regarding her credit pursuant to s 104(4) of the Evidence Act. That was the forensic choice that was open to her and which the trial judge recognised (Transcript, 19 September 2016, 21.6-.45). Details of the complaints relating to her behaviour as a nurse, as well as the other material within [AB’s] statement might well have been used against her (e.g. the applicant had a court appearance for the possession of a drug of dependence in Victoria in 2008).

7. [290]

   The applicant’s challenge to the admissibility of the alleged admission to [AB] might well have turned attention to that evidence and caused greater weight to be given to it by the jury. In those circumstances, without an alternative version from the applicant of the conversation or the circumstances in which it occurred, other than what is set out in [AB’s] statement, it is difficult to see how defence counsel could have challenged its admissibility other than by relying upon s 137 as he did, or by attacking [AB’s] credibility.

8. [291]

   As is clear from defence counsel’s closing address on behalf of the applicant, it was her sworn denial of the commission of the murders which was essential to her case. Thus her credibility was of considerable importance. It is therefore understandable why [AB] was not challenged as to his credibility. The tactic employed (quite properly) by defence counsel was “confess and avoid”, i.e. the applicant was a nurse who knew about how insulin might kill. She, like all nurses, at least in South Africa where she was trained, knew that. That was hardly remarkable. Neither was her recitation of her knowledge during a television program five years before the alleged offences. This approach by counsel for the defence was a rational method of explaining the evidence. This was appreciated by the trial judge before the trial commenced (T, 19 June 2016 at 21.7-.45).

9. [292]

   The trial judge deferred ruling on this evidence. His Honour said:

10. [293]

    As can be seen from the conduct of the trial, instead of a direct challenge to [AB’s] credit that might in turn have had adverse consequences for the applicant, defence counsel chose an approach, following his partially successful application pursuant to s 137 of the Evidence Act, to downplay the evidence containing the admission. That is a reasonable explanation for defence counsel’s conduct based on an objective examination of what took place at the trial. It also explains why defence counsel did not apply to have the statement ruled inadmissible pursuant to s 90 of the Evidence Act. Those considerations effectively rebut the claim of incompetence made against him. Moreover, again having regard to the conduct of the trial, an application pursuant to s 90 was most unlikely to have been successful.

11. [294]

    Taking all those matters into account, there was no miscarriage of justice. This ground has not been made out and should be dismissed.

Ground 11 – The trial Judge erred in allowing the admission of evidence of acts relating to a charge withdrawn by the Director of Public Prosecutions prior to the trial and which would properly not be allowed to be heard by the jury or in the court's discretion.

1. [295]

   The applicant noted that although the charges relating to the administration of Panadol by her to Ms Patterson were withdrawn before the trial, evidence was allowed to be adduced in relation to these uncharged acts. The applicant noted that she was extensively cross-examined about this issue. The applicant submitted that such cross-examination should not have been allowed because it was irrelevant and could not have rationally affected the fact finding of the jury in relation to the two counts of murder.

2. [296]

   The applicant submitted that the Crown’s insistence on leading this evidence, and the trial judge’s failure to properly warn the jury concerning the uncertain evidentiary basis for this evidence, and his failure to warn the jury against using this evidence as propensity reasoning, gave rise to a miscarriage of justice. This was because the evidence relating to the administration of Panadol had little or no relevance to the murder charges and had a tendency to create a false issue and invite unfair speculation. The applicant submitted that the only basis upon which the Crown sought to lead that evidence was to establish that she was not motivated to harm Ms Patterson because Ms Patterson’s complaint was only minor, whereas she did have such a motivation in relation to Ms Spencer and Ms Darragh, whose complaints were more serious. The applicant submitted that such an approach involved speculation and would have distracted the jury from their primary task of considering relevant and admissible evidence.

Consideration

1. [297]

   The applicant was charged with the common assault of Ms Patterson. The Crown alleged that Ms Patterson had been awakened and then been given Panadol by the applicant. Panadol was a drug that was able to be dispensed to Ms Patterson when needed. What the applicant had done, albeit on the Crown case at 1am not 11pm, was nonetheless relevant to the Crown case. The Crown relied upon it to answer the likely question with respect to the Crown’s submission on motive, bearing in mind that the applicant knew that Mrs Patterson had made a complaint against her, “Why didn’t the applicant inject Ms Patterson?” The Crown Prosecutor explained the relevance of the incident when the issue was first raised in the pre-trial hearing on 19 September 2016 (at T.27.32-.42). The Crown returned to this issue at the later pre-trial hearing on 10 October 2016 where the Crown submitted:

2. [298]

   Accordingly, the primary purpose of the Crown in adducing that evidence was to ground the submission that by waking Ms Patterson the applicant lost any opportunity to inject her with insulin. There was also another basis for the admissibility of that evidence. Following being advised of the complaints, the applicant was instructed by Ms Turner not to go into Ms Patterson’s room. Despite that she did so, although the Crown maintained that the recorded time for the dispensing of the Panadol must have been incorrect. The Crown explained its contention and its relevance at the preliminary hearing on 10 October 2016 as follows:

3. [299]

   In that preliminary hearing, defence counsel submitted that the evidence of the giving of Panadol to Ms Patterson was irrelevant, that tendency was involved and that unfair prejudice arose. His Honour resolved the issue by rejecting as speculation that part of the Crown’s argument to the effect that the applicant had entered Ms Patterson’s room with an intent to kill her. However, his Honour did allow the evidence as going to context and to the fact that despite being told not to go into Ms Patterson’s room she had done so. This had relevance to whether or not she had entered Ms Darragh’s room despite a similar warning, i.e. that that instruction may not have been enough to keep her away from Ms Darragh.

4. [300]

   As can be seen, the matter was fully argued before the trial judge as a preliminary matter. No error has been identified in the approach of his Honour. The evidence was clearly relevant and did not give rise to unfair prejudice. This ground of appeal should be dismissed.

Ground 20 – The trial miscarried because counsel failed to properly object to the Crown Prosecutor's final address in respect of using any evidence surrounding the circumstances of the appellant's dispensing of Panadol to a third patient as grounding any proper submission as to motive, opportunity, or part of the chain of reasoning of the jury in coming to adverse verdicts in respect of counts 1 and 2.

1. [301]

   The applicant submitted that the Crown’s insistence on leading evidence regarding a third patient and the trial judge’s failure to properly warn the jury throughout the trial and in the summing up of the evidential basis for this evidence and failing to warn against using this evidence against the appellant by propensity reasoning, amounted to an error in law and as a result, a miscarriage of justice occurred.

Consideration

1. [302]

   This ground alleges a miscarriage of justice because of the failure of defence counsel to raise an objection. The relevant principles in respect of objections not taken at trial have been referred to earlier in these reasons.

2. [303]

   In any event, there was nothing in the Crown’s submissions in his final address which were contrary to the trial judge’s ruling on 10 October 2016.

3. [304]

   The Crown’s compliance with his Honour’s ruling provides an adequate explanation for why there was no objection by defence counsel to this part of the Crown’s address.

4. [305]

   This ground has not been made out and should be dismissed.

Ground 12 – The trial Judge's summing up was unfair and unbalanced in favour of the Crown and contrary to the interests of the defence.

1. [306]

   The applicant submitted that the trial judge did not fairly sum up the defence case but merely summarised defence counsel’s submissions in his closing address. The applicant submitted that the trial judge had set out in detail the 29 circumstances identified by the Crown, but when putting the defence case to the jury, he raised only three of the 15 circumstances, which the defence argued demonstrated that the applicant did not commit the murders.

2. [307]

   The applicant submitted that the trial judge chose to give a summary of the respective cases of the Crown and the defence with transcript references. His Honour also gave the jury an index of witnesses and page numbers of the transcript. He further gave them a document entitled “Possible Question Trail” and despite the fact that defence counsel did not object, the applicant submitted that the judge’s methodology in providing information to the jury in written form was unfair to the defence in that it conflated the cumulative onus of the Crown into a list of submissions without proper directions as to each of those circumstances as was required. The applicant submitted that the Crown’s bullet point summary, as authored by the trial judge, was grossly unfair to her. The applicant submitted that the trial judge insufficiently summed up the careful defence submissions.

3. [308]

   The applicant submitted that the trial judge did not give proper weight to the reasonable hypothesis open on the evidence that the female DNA on the two used ampoules of insulin in the biohazard container in the hostel was that of the perpetrator of the two murders. The applicant submitted that his Honour did not appropriately stress that there was no rebuttal by the Crown of the reasonable hypothesis of her innocence open on this evidence.

4. [309]

   The applicant again made submissions that his Honour had erred in directing the jury that they were not to consider the murders together but as separate incidents and that they should not use evidence in relation to one count as evidence relevant to the other count.

5. [310]

   The applicant submitted that the fact that the jury had returned with verdicts after only two hours and twenty minutes of consideration of a complex and totally circumstantial case, indicated that the essential fact finding required of the jury had not been carried out and that the reason for this was his Honour’s unbalanced and unfair summing up.

6. [311]

   The applicant submitted that the trial judge erred in instructing the jury that they could reject the expert evidence but cautioned them against doing so if it were not contested. The applicant submitted that the defence had contested the gravamen of the expert evidence, including the type of insulin injected, the period of time during which it could have been injected and the lack of investigation to ascertain the type of insulin injected. The applicant submitted that proper weight had not been given to these matters in the summing up and the jury had not been instructed as to the role of expert evidence where it was contested.

7. [312]

   The applicant submitted that the trial judge erred in failing to direct the jury that even if they did not accept the applicant’s evidence, it did not alter the Crown’s burden of proving the case and each element of the two counts of murder beyond a reasonable doubt.

8. [313]

   The applicant submitted that the accumulation of all of the above factors provided a compelling argument towards a conclusion that the trial was unfair. The applicant submitted that the convictions sat uncomfortably with her reasonable expectation that a jury would act according to law, rather than be influenced by emotion and impression.

Consideration

1. [314]

   It is, of course, trite to observe that a trial judge is required in the summing up to fairly put the defence case to the jury (RPS v R [2000] HCA 3; 199 CLR 620 at [41]; Castle v The Queen; Bucca v The Queen [2016] HCA 46; 91 ALJR 93 at [59]). There is, however, no fixed way in which a summing up must be structured. As was observed by the High Court (Kiefel, Bell, Gageler, Keane and Nettle JJ) in Castle v The Queen; Bucca v The Queen at [59]:

2. [315]

   It is not the length of time devoted to the Crown case or the defence case which matters; it is the “fairness, balance and impartiality of the summing up which the appellate court must review and safeguard”: Golossian v R [2013] NSWCCA 311 at [91]. Whether or not a party’s case has been adequately put to the jury is not measured in the number of words spoken; nor can it be assessed by a direct comparison with the attention given by the trial judge in his or her summary of the case brought by the opposing party. This is particularly so because in a criminal trial, the Crown case will usually constitute the vast majority, if not the whole of the evidence placed before the jury, and more often than not more time will need to be spent on it (Aravena v R [2015] NSWCCA 288 at [105]-[106] (per Beazley P, Hall and Wilson JJ).

3. [316]

   The question ultimately is whether the trial judge has put the accused’s case in such a way as to allow the jury to properly consider the issues raised on the accused’s behalf.

4. [317]

   In the light of the applicant’s submissions in support of this ground, there is no need for the trial judge to separately identify and summarise the defence case in his summing up. This issue was specifically addressed in AP v R [2013] NSWCCA 189 where Leeming JA (R A Hulme and Button JJ agreeing) said:

5. [318]

   The conclusion we have arrived at is that the summing up was fair and was seen by the defence counsel at the time, to have been fair. That conclusion applies equally to the trial judge’s oral and written directions. That is particularly so in relation to his Honour’s written directions. There was no evidence linking the two used insulin ampoules found in the hostel to these murders. The important issue in the trial was that there was insulin available and accessible by the applicant.

6. [319]

   There was no request for a redirection by defence counsel. In that regard, r 4 of the Criminal Appeal Rules applies. Failure of defence counsel to make an application for a redirection is an important factor when considering the fairness of a trial judge’s summing up. Defence counsel would have had a better appreciation of the atmosphere of the trial than this Court.

7. [320]

   The failure by counsel to take objection or raise an issue in relation to the summing up is usually a reliable indicator of the fairness and adequacy of the summing up (R v ARS [2011] NSWCCA 266 at [148]). It may have been that counsel took no objection as, in the atmosphere of the trial, he saw no injustice in what was being done: Germakian v R [2007] NSWCCA 373; 70 NSWLR 467 at [10]-[13].

8. [321]

   Specifically, the applicant’s complaint that his Honour gave more detail concerning the Crown case than the defence case is not made out. The trial judge addressed the applicant’s argument about motive, correcting the submissions by defence counsel that suggested that motive was an indispensable part of the Crown case (T.1031.42-.46).

9. [322]

   The trial judge then went on to put the applicant’s case as to opportunity and the applicant’s conduct in general (SU 68.5-71.3). The trial judge’s summing up covered the points made by the defence counsel satisfactorily.

10. [323]

    Insofar as the question of tendency and coincidence evidence is concerned, this has been dealt with elsewhere in these reasons.

11. [324]

    As part of his general directions, the trial judge directed the jury that they could accept all or part of a witness’s evidence and specifically included the applicant in that direction (SU 8.9-9.2). Later, the trial judge gave a standard direction concerning how the jury should apply the burden and standard of proof, taking into account that the applicant had given evidence. A central issue was whether the applicant had injected both Ms Darragh and Ms Spencer. Even if the jury rejected the applicant’s evidence on that point, they could not convict unless satisfied of the Crown case. His Honour’s directions sufficiently explained the point which the applicant alleges was not put to the jury. Further, those directions were sufficient, in light of the Crown Prosecutor’s submission concerning the applicant’s unreliability as a witness.

12. [325]

    In his summing up, the trial judge said:

13. [326]

    The “Possible Question Trail” was exactly that – a possible way to reason. It involved no direction as to how the jury should deliberate. The trial judge used Ms Spencer as an example when explaining the possible question trail (SU 84.10).

14. [327]

    As indicated by that extract, the applicant’s submission in relation to the Possible Question Trail is without substance and should be rejected.

15. [328]

    The length of time the jury deliberated does not indicate error. How the jury treated the transcript they requested was a matter for them. The applicant’s submission on this issue should not be accepted.

16. [329]

    Most, if not all, of the expert evidence was not contested. What was in issue were the conclusions that could be drawn from those opinions in the light of all of the evidence that was in issue. There was no error in his Honour’s direction as to how the expert evidence could be used.

17. [330]

    For the above reasons, the challenge to the trial judge’s summing up has not been made out and I would refuse leave to rely upon this ground of appeal.

Ground 1 – The evidence in relation to each count was unsafe, and unsatisfactory, and insufficient on the whole of the evidence to secure a conviction against the applicant.

1. [331]

   The manner in which this Court approaches a ground of appeal contending that a verdict of guilty was unreasonable, or could not be supported by the evidence, remains that stated in M v The Queen [1994] HCA 63;181 CLR 487, MFA v The Queen [2002] HCA 53; 213 CLR 606 and SKA v The Queen [2011] HCA 13; 243 CLR 400. The task of this Court was set out in SKA v The Queen as follows:

2. [332]

   A useful summary of the above principles is set out in Romolo v R [2018] NSWCCA 3 at [24] where Macfarlan JA (Button J agreeing) said:

Applicant’s submissions

1. [333]

   The applicant submitted that the guilty verdict was unsafe for a number of reasons. The applicant submitted that the type and source of the insulin used to murder the deceased was not identified. It was not known whether quick acting insulin was used or whether Mixtard 30/70 insulin or slow acting Lantus SoloSTAR insulin was used. The applicant submitted that this failure affected the capacity of the expert evidence to establish that the insulin could only have been administered to the deceased while the applicant was on duty on the night shift covering 9/10 May 2014. The applicant submitted that there was no proper control of insulin in St Andrews. It was stored in a less secure part of the medication room. The applicant submitted that the two used insulin ampoules which had been found in the hostel were the Mixtard 30/70 insulin which was used by Mr Capewell and did not have on them her fingerprints nor her DNA. The applicant submitted that this was a strong indication that someone other than her had administered the insulin to the deceased.

2. [334]

   The applicant submitted that the failure of the Crown to lead evidence regarding the inventory and accessibility of Lantus SoloSTAR insulin kept in the hostel dispensary meant that the Crown was unable to rebut the proposition that just about anyone in St Andrews could gain access to insulin and that she was not in a special position insofar as access to insulin was concerned.

3. [335]

   The applicant submitted that the Crown did not lead any evidence of investigation to ascertain the pharmacy or dispensary that had provided the used ampoules. The applicant submitted that this was a serious deficiency in the Crown case because every ampoule was marked with a batch number for the purposes of tracing by health authorities and by the manufacturing pharmaceutical company. She submitted that it would have been relatively easy to prove the source of the relevant ampoules, both at the dispensary or pharmacy level. She submitted that no evidence was led regarding any investigation into the purchase of the used ampoules or into the medical officer who prescribed them. She submitted that the relevant records of the insulin audit at St Andrews indicated that personnel at St Andrews were unsure how many ampoules of insulin had arrived and were therefore unable to determine any discrepancy.

4. [336]

   The applicant stressed that she willingly underwent DNA and fingerprint testing and that neither her DNA nor her fingerprints were found on the two used ampoules from the hostel. All that could be identified was that the DNA on one of those ampoules came from a woman.

5. [337]

   The applicant noted that the batch numbers of the two used ampoules from the hostel did not match the batch numbers for any of the boxes of Mixtard 30/70 ampoules found in the Dianella dispensary during the insulin audit of 14 May 2014. When a second audit of the insulin in the Dianella dispensary was conducted on 24 June 2014, five full boxes of ampoules, matching the allegedly fatal ampoules, were found. The applicant’s access to the Dianella dispensary was suspended on 13 May and so she could have no responsibility in relation to either insulin audit. She noted that the discrepancy in relation to the findings of the two insulin audits seriously damaged the Crown case. This was because there was a compelling hypothesis that an unknown woman had access to the two used insulin ampoules, which were probably those used to inject the deceased. The applicant submitted that an essential piece of evidence to be established beyond reasonable doubt in the Crown case was the source of the insulin used to inject the deceased and its type. The failure of the Crown to establish this matter even on the balance of probabilities was a serious flaw in the Crown case.

6. [338]

   The applicant submitted that the only incontrovertible fact, demonstrated by the multiple audits and different results thereof, without explanation and without involving her, was that medication generally and insulin in particular, were dealt with at the St Andrews facility in a slap-dash and careless fashion. It was submitted that it was not possible to state with any certainty what medications were present at any given time, how they came to be present, who was responsible for their presence or absence and whether or not records were kept of their use. The applicant submitted that from this, together with the state of the medical evidence, where the Crown witnesses could not be certain of the timeframe in which the insulin must have been administered, the jury could not reason to the necessary conclusion that it was proved beyond reasonable doubt that she administered the insulin to Ms Darragh and Ms Spencer.

7. [339]

   The applicant submitted that the circumstances surrounding Mr Capewell’s Mixtard 30/70 ampoules meant that the prosecution case depended upon speculation. There was no link in the chain needed to be established by the Crown which connected the two used ampoules to the applicant. The applicant submitted that the Crown had failed to lead evidence of any used needles found or DNA or any other forensic evidence indicating contact of the used ampoules, either with her, or with either of the two deceased. The applicant submitted that the Crown had failed to prove the essential circumstantial case it set out to prove and invited the jury to find, namely that she was the handler of the relevant ampoules and it was established beyond reasonable doubt that her handling of the ampoules was an indispensable fact in the chain of reasoning to her guilt.

8. [340]

   The applicant submitted that the evidence in relation to the two used ampoules was totally insufficient to link her to them and if anything, they implicated an unknown third party, which was a reasonable hypothesis that ought to have been put to the jury by the trial judge. The applicant submitted that there was simply no other proper and admissible evidence that could prove beyond reasonable doubt that she handled the “murder weapons”, i.e. the two used ampoules of insulin. The applicant submitted that the Crown’s failure to establish that indispensable fact beyond reasonable doubt was fatal to the Crown case.

Consideration

1. [341]

   A primary submission by the applicant in support of this ground of appeal is that the two used ampoules of insulin, found in a sharps bin in Hardwicke Hostel, were the source of the insulin administered to the two deceased. This submission is misconceived. The Crown did not assert that these ampoules were the source of the insulin, which was administered to the two deceased. They were on the evidence at trial sources of insulin, which had been located in another ward, which had been left there at an uncertain time and for uncertain reasons. On the Crown case, all that had to be established was that there was insulin available at St Andrews and that the applicant was able to access it. This was established by the Crown beyond reasonable doubt.

2. [342]

   The applicant’s submissions concerning batch numbers, with respect, goes nowhere. Firstly, it depends on the assumption (not established) that the source of the insulin administered to the two deceased was the two used insulin ampoules found in the hostel. Next, the manufacture of the Mixtard 30/70 did not have control over the batches after they were sold to a wholesaler. As batches were produced approximately every 60 days, ampoules from different batches might be dispensed together. Police inquiries from the pharmacy where Mr Capewell obtained his Mixtard 30/70 insulin did not establish any batch numbers.

3. [343]

   There was, however, an amount of insulin in the medication room of Dianella 1. It came from Mr Capewell. How much was missing was not known. That of itself, however, did allow for enough insulin to be available to be given to both deceased to cause the hypoglycaemia that proved fatal.

4. [344]

   In circumstances where it was no part of the Crown case that the used ampoules found in the hostel were those used to inject the two deceased, the identity of the batch numbers from which they came was not of importance but in any event, could not be established.

5. [345]

   It is true that the police investigation did not include an analysis of the blood samples in an attempt to determine which type of insulin was administered to the two deceased. On that issue, the applicant had the benefit of a direction pursuant to Mahmood v State of Western Australia [2008] HCA 1; 232 CLR 397. That was a relevant investigation which could, and in retrospect perhaps should have been carried out. The fact that it was not carried out was a problem for the Crown and the applicant had the benefit of a direction by the trial judge to that effect. It was not, however, as the expert evidence established, an indispensable intermediate fact which had to be established beyond reasonable doubt.

6. [346]

   Somewhat repetitively, the applicant submitted that the Crown had failed to prove that the insulin used by Mr Capewell was the insulin used to inject the two deceased. Implicit in that submission was that proof of the source of the insulin, and therefore the type of insulin injected into the deceased, was an indispensable fact to be proven beyond reasonable doubt. There was no submission to that effect at trial. Nor has any reason been advanced for why this Court should conclude that proof of the source and type of insulin should have been an indispensable fact. This is particularly so when one has regard to the fact that this was not a case where there was a paucity of circumstantial facts.

7. [347]

   As McHugh J said in Shepherd v The Queen [1990] HCA 56; 170 CLR 573 at [12]; 593:

8. [348]

   In Shepherd v The Queen Dawson J said at [5]; 579:

9. [349]

   Where there are only one or two circumstantial facts, then an indispensable fact direction may be necessary. In Davidson v R [2009] NSWCCA 150; 75 NSWLR 150 Spigelman CJ (with whom James and Simpson JJ agreed) said at [8]:

10. [350]

    More recently, in R v Rogerson; R v McNamara (No 54) [2016] NSWSC 654 at [7] Bellew J, when giving reasons for not giving such a direction said:

11. [351]

    In this case, a direction with respect to the finding of indispensable facts was not open on the authorities, nor was it asked for and giving such a direction risked confusion. This aspect of the applicant’s submission has not been made out.

12. [352]

    The applicant made a similar submission to the effect that the lack of evidence of the needle used in killing the deceased and able to be linked to the applicant, or the applicant’s handling of the ampoules found at the Hardwicke Hostel, meant that the Crown had “failed to prove the essential circumstantial case it set out to prove” (AWS [15]). That submission is misconceived for the following reasons:

13. [353]

    The Crown did not set out to prove that the applicant had used a particular needle; only that she must have used a needle in a nursing home where there would have been no shortage of such items. The same can be said in relation to insulin. The submission, if correct, poses the question in any case where an instrument or weapon is used to kill – must there be evidence to link the accused to a particular weapon? The answer, in general, would be that it would not be necessary. The lack of such evidence in a particular case might give rise to a reasonable doubt but that is another matter and is one which is entirely fact dependent. Nor does the applicant’s continued reliance on the two used ampoules that were located in the hostel assist her argument.

14. [354]

    In the course of making the submissions set out above, the applicant asserted that there was “impermissible reliance on expert evidence” (AWS [5]) but without setting out the particulars of that submission. As earlier stated, the expert evidence in this case was not contested.

15. [355]

    The applicant did assert that staff, other than nurses, had access to the medication room. The jury may not have believed her. No other staff member from St Andrews made that assertion and it was not put in cross-examination to those staff members. The resolution of that issue, to the extent that it needed resolving, was a matter entirely for the jury.

16. [356]

    The time range for the fatal injections depended upon the insulin that was used. That is accepted, and was accepted by the experts. At its widest, it might have extended back to 7pm. The problem for the applicant in that theory is that it would have meant that Ms Darragh and Ms Spencer were both awake at 7pm. The evidence makes it clear that Ms Darragh was unlikely to have undergone an unsolicited injection when she was awake and alert without complaint.

17. [357]

    In summary, the Crown produced a very cogent case as the following evidence briefly summarised indicates. The applicant had commenced working at St Andrews on 13 March 2014. She had been subject to previous complaints. Both the deceased had complained about her. During the night of 9/10 May from 10.15pm, the applicant was the only RN on duty. The applicant had been advised of the complaints, at least in relation to Ms Darragh and Ms Patterson. The applicant was alone in the Dianella 1 Ward from approximately midnight until 1am on 10 May. A subterfuge was used so that only the applicant entered the room of Ms Spencer. At approximately 7am, both Ms Darragh and Ms Spencer were found comatose. Both died and both were found to have been injected with exogenous insulin. Had blood samples not been taken promptly, there would have been no evidence of insulin injection.

18. [358]

    The circumstantial facts were wide ranging. Motive, opportunity and knowledge of the use of insulin were revealed by the evidence. The applicant’s behaviour in the early morning with respect to Mrs Darragh and Ms Spencer supported the conclusion of her guilt. The surveillance device recordings (Exhibit GG) where the applicant said things to Hermann which she could only have known from her involvement with the deaths, reinforces the conclusion as to guilt.

19. [359]

    It was well open to the jury to find beyond reasonable doubt that the applicant was guilty on both counts. The verdicts were not unreasonable. This ground of appeal has not been made out.

SENTENCE APPEAL

1. [360]

   The applicant seeks leave to appeal against the sentence imposed, on the following grounds:

2. [361]

   It is convenient to deal with these grounds together.

3. [362]

   The trial judge made the following findings in relation to the insulin:

Submissions

1. [363]

   The applicant submitted that the trial was conducted by the Crown on the basis that it was a circumstantial case and that the jury must be satisfied of guilt beyond reasonable doubt on the consideration of all the circumstances. The applicant submitted that the trial judge seriously erred in finding that the appellant had used the ampoules of Mixtard 30/70 insulin found in the biohazard disposal bin in the hostel of the St Andrews Care Facility when the Crown did not suggest that this fact could be found by the jury and did not suggest in the sentencing proceedings that it could be found beyond reasonable doubt.

2. [364]

   The applicant submitted that the trial judge compounded that finding by also finding beyond reasonable doubt that the insulin used by the applicant was Mixtard 30/70 insulin stored in the refrigerator of the Dianella medication room. The applicant submitted that those facts were found beyond reasonable doubt despite the Crown’s submission on sentence which implicitly conceded that such a finding was not available to the trial judge. The applicant submitted that the Crown’s submissions on sentence did not specify the source or methods of the fatal injections.

3. [365]

   The applicant submitted that the trial judge compounded the overreach by finding that the applicant disposed of the syringes surreptitiously and in a way designed to avoid detection by disposing of the syringes in the hostel. The applicant submitted that the Crown implicitly conceded that the evidence could not resolve the question of which insulin was administered by her. In that way the trial judge attempted to fill in the factual landscape with details that the Crown had conceded was unable to be proved. The applicant submitted that the culmination of these errors resulted in her culpability being assessed in excess of that which proper fact finding principles would have allowed.

4. [366]

   The applicant submitted that there was evidence in the trial that gave rise to circumstances that could suggest an entirely different type of insulin was available, and that the opportunity arose for it to be injected by persons other than her. The evidence, it was submitted, left open the opportunity of other parties having access to the two deceased women and to the places where medications were kept. It was therefore possible that numerous people other than the applicant were able to access those medications at a variety of times.

5. [367]

   The Crown submitted that, for error to be found, it would need to be established that there was no evidence to support a particular finding, or that the evidence was all one way, or that the trial judge had misdirected himself. The Crown submitted that those findings were open. Although this aspect of the evidence was uncertain at the time of trial, the guilty verdicts made the explanation a reasonable one.

Consideration

1. [368]

   Fact finding is the province of the sentencing judge. In Xiao v R [2018] NSWCCA 4 this Court discussed the approach to be taken to factual findings of a sentencing judge. The Court (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ) said at [118]-[125]:

2. [369]

   Applying the O’Donoghue test, it cannot be said that the findings were not open to the trial judge. When the surrounding evidence is considered (the applicant was alone in that ward for an hour, that hour formed part of the time the experts agreed the insulin was injected, the applicant had access to the insulin in that ward, there was insulin belonging to Mr Capewell missing when it was checked later on the day of the murders, other staff members were present in other wards where insulin was kept at the relevant time), the inference was open that the insulin used by the applicant came from that source.

3. [370]

   However, even if the trial judge was not entitled to make that finding, it is difficult to see how the source of the insulin could possibly reflect itself in the sentences imposed. Counsel for the applicant on the appeal ultimately accepted that that was so. Even if the judge was in error in determining which insulin was used and from where it was obtained, that cannot diminish in any way the culpability of the applicant who has been found guilty of murdering the two women by injecting them with insulin.

4. [371]

   A number of the applicant’s submissions concerning these grounds are misconceived. They appear to confuse what formed part of proof of the guilt of the applicant with the duty of the trial judge to find facts consistent with the jury’s verdict, and to find any facts against the offender beyond reasonable doubt. It was not necessary for the Crown to prove the particular insulin used nor where it came from beyond reasonable doubt. Those were circumstantial matters that formed strands in the cable of the complete circumstantial case. That is no impediment to the trial judge’s obligation to find facts beyond reasonable doubt consistent with the jury’s verdict.

5. [372]

   The submissions concerning the existence of evidence of other persons having the opportunity to access the insulin and to inject it into the deceased persons are irrelevant to the sentencing process in circumstances where the jury found the appellant guilty of murdering the two deceased women.

6. [373]

   These grounds should be rejected.

7. [374]

   In relation to the applicant’s motivation for the murders, the trial judge said this:

8. [375]

   His Honour also said at [62]:

9. [376]

   The trial judge said this about the planning for the offences:

Submissions

1. [377]

   The applicant submitted that the trial judge erred in attributing to her a motive for her actions that was not available on the evidence. The applicant submitted that the judge erred in finding beyond reasonable doubt that the applicant inferred that the third complainant was Ms Spencer. The applicant submitted that the nature of the three complaints would not warrant serious action against the applicant.

2. [378]

   The applicant submitted that the finding by the trial judge that she was motivated by a calculated and deliberate motive to kill the victims who had complaints about her increased the objective seriousness of the applicant’s culpability. The applicant submitted that the trial judge erred in finding the level of objective seriousness as being significantly above the mid-range. The applicant submitted that the trial judge could properly only have found a level of objective seriousness consistent with overreaction to an adverse complaint, being a spur of the moment decision rather than approaching the degree of planning envisaged in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Consideration

1. [379]

   The Crown case against the applicant relied in part on the motive the Crown asserted the applicant had to kill the patients who had made complaints against her. Her continued registration as a nurse was at risk if the complaints were found to be proved and serious. In circumstances where the applicant was found guilty, it was reasonably open to the trial judge to conclude that the complaints made provided the motivation. The alternative view could only be that no motive could be shown and that it was a coincidence that those particular persons were singled out.

2. [380]

   It was open to the trial judge to conclude that the applicant worked out that the third complainant was Ms Spencer. There was no evidence of anyone complaining about the applicant other than the two deceased and Ms Spencer. The applicant must have known that she had not treated Ms Spencer appropriately on the occasion in question and, since there was a third complainant, it was likely to be Ms Spencer.

3. [381]

   The submissions with regard to planning proceed largely on the mistaken view that the trial judge found that the planning aggravated the offending. His Honour said clearly at [53] that he did not consider the factor in s 21A(2)(n) to be an aggravating factor. His Honour returned to the same point at [68] where he held that the lack of planning together with one other feature militated against the imposition of a life sentence that had been sought by the Crown.

4. [382]

   It should be noted that there is no ground of appeal challenging the trial judge’s assessment of objective seriousness despite the submissions made in relation to this ground. The assessment of objective seriousness is quintessentially the responsibility of the sentencing judge: Mulato v R [2006] NSWCCA 282 at [37]. No error has been demonstrated by the applicant in relation to the trial judge’s approach to matters of aggravation as alleged in her submissions.

5. [383]

   We would reject this ground of appeal.

Submissions

1. [384]

   The applicant submitted that extra-curial punishment was likely to occur because of her complete separation from her two young children who were likely to remain with her former partner. The applicant submitted that that should have been taken into account along with her isolation in the Australian prison system away from all other members of her family.

Consideration

1. [385]

   Although this ground appears to assert incompetence on the part of the applicant’s lawyers at the sentencing proceedings, the submissions made in support of this ground make no such complaint. The affidavit sworn by the applicant and read at the hearing of the appeal does not say that the lawyers were instructed to make submissions along the lines of the submissions now made.

2. [386]

   The applicant swore an affidavit for the purpose of the sentence proceedings. It may reasonably be inferred that it was prepared by the applicant’s lawyers on instructions given by her. In that affidavit she said this:

3. [387]

   Her stepfather, in a letter tendered at the sentence proceedings, said that he had telephone contact with the applicant at least once a month since she moved to Australia.

4. [388]

   The consideration relating to the isolation of a prisoner in the prison system is ordinarily concerned with foreign nationals, usually those involved in serious drug offences, who are arrested and charged whilst in Australia. The applicant is not such a person. She had lived in Australia for at least six years by the time of the sentence proceedings, because she said in her affidavit that she had a child aged six years to AB. It is apparent from her affidavit that she has no or a minimal relationship with her older children, and most of her family in South Africa. Once she went into custody, she was always going to be separated from her younger children who are in the custody of AB.

5. [389]

   In his affidavit sworn in the appeal proceedings the applicant’s counsel, Mr Edwards, said at [20]:

6. [390]

   Mr Edwards also said that his instructing solicitor, Mr Blair, obtained a report from a psychologist, Ruth Allen of Duffy Robilliard, dated 29 November 2016. He considered that the report would not assist the applicant to receive a favourable outcome on sentence. That evidence is corroborated by Mr Blair, who added that the results of the psychometric testing performed by Ms Allen were extremely unhelpful to the applicant.

7. [391]

   Mr Edwards was not cross-examined about any of his response to this ground of appeal in his affidavit. Nor was Mr Blair. In our opinion, Mr Edwards was quite correct in concluding that the information he had from the applicant in her affidavit did not amount to extra-curial punishment, nor were the circumstances exceptional enough to constitute third party hardship. There was nothing unusual about the applicant’s situation to warrant a specific submission to the trial judge at the sentence proceedings, as is now asserted should have been made.

8. [392]

   To the extent that this ground asserts a failure on the part of the trial judge to make some allowance in her favour for these matters, as the submissions suggest, the principle in Zreika v R [2012] NSWCCA 44 is relevant. In that case, Johnson J (McLellan CJ at CL agreeing) said at [81]:

9. [393]

   Given the number of times this passage has been quoted or referred to in decisions of this Court, the appellant’s submissions in relation to this ground are somewhat surprising. A sentencing judge can scarcely be criticised for not making reference to some specific feature of an offender’s circumstances where that feature was not drawn to the judge’s attention.

10. [394]

    We would reject this ground.

11. [395]

    The trial judge found that the offences were aggravated by being committed in the home of the victims, that the offender abused her position of trust, and that the victims were vulnerable. Those last two circumstances were considered by his Honour to be significantly aggravating.

12. [396]

    His Honour found that the objective seriousness of the offending was significantly above the mid-range. There is no ground of appeal challenging that assessment. His Honour found that the applicant was not remorseful, that he could not find she had good prospects of rehabilitation, unlikely though she was to reoffend.

13. [397]

    His Honour then went on to say:

14. [398]

    In relation to the applicant’s character, his Honour said this:

Submissions

1. [399]

   The applicant submitted that the primary judge, while taking into account the totality of the two offences, did not apply the correct “instinctive thinking” in aggregating the two separate sentences. The applicant submitted that the primary judge “gave no consideration at all” to her good character. She submitted that she only had a minor conviction, which should have been set at nought.

2. [400]

   The applicant submitted that the primary judge erred when giving her a further five years in respect of the head sentence and the non-parole period.

Consideration

1. [401]

   Contrary to the applicant’s submissions, the trial judge did consider the issue of the applicant’s character. His Honour took into account her lack of any serious convictions as a mitigating factor. His Honour’s assessment of her character was one for him to make. It was entirely open on the material before his Honour. The material itself was no doubt the reason a submission about good character was not made by her counsel at the sentence proceedings. The Zreika principle is relevant to his submission.

2. [402]

   In relation to the aggregation of the sentences, his Honour’s reasons for the extent of the accumulation at [94] and [95] is a sufficient answer to the submission. In Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 Gageler, Nettle and Gordon JJ said at [64]:

3. [403]

   It is not suggested by the appellant that the indicative sentences were so inappropriate that the aggregate sentence could be shown to be manifestly excessive. The indicative sentences for the offences were well within the range taking into account the level of objective seriousness found by the primary judge. The criminality of one of the murders could not be encompassed in the criminality of the other: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [12]. The determination of the accumulation was a matter for the trial judge’s discretion. A House v The King (1936) 55 CLR 499; [1936] HCA 40 error would need to be shown to interfere with the discretion. No such error is asserted, let alone demonstrated.

4. [404]

   Speaking more generally, we cannot accept that the aggregate head sentence and aggregate non-parole period imposed by his Honour went beyond the bounds of the exercise of the sentencing discretion with regard to these two murders.

5. [405]

   We would reject this ground.

Orders

1. [406]

   In relation to the conviction appeal, the orders which we make are as follows:

   1. (1)

      Leave to appeal in respect of Grounds 1, 2, 3, 6, 9, 11, 15 and 16 is refused.

   2. (2)

      Leave to appeal in respect of Grounds 4, 5, 7, 8, 10, 12, 13, 14, 17, 18, 19 and 20 is granted but the appeal in respect of those grounds is dismissed.

2. [407]

   In relation to the application for leave to appeal against sentence, the orders which we make are as follows:

   1. (1)

      Leave to appeal against sentence granted.

   2. (2)

      The appeal against sentence is dismissed.