Davis v R

1. [1]

   HOEBEN CJ at CL:

Offences and sentence

1. [2]

   There were three counts on the indictment:

2. [3]

   The trial judge returned verdicts of guilty on all three counts.

3. [4]

   On 13 December 2016 R A Hulme J sentenced the applicant to an aggregate term of imprisonment of 40 years with a non-parole period of 30 years, commencing 17 December 2014 with a non-parole period expiring on 16 December 2044 and the total term expiring on 16 December 2054.

4. [5]

   The indicative sentences proposed were:

5. [6]

   The applicant seeks leave to appeal against the three verdicts of conviction. The applicant relies upon the following grounds of appeal:

GENERAL BACKGROUND AND CROWN CASE

1. [7]

   Over two consecutive days in October 2013, three elderly residents from the same ward of an aged care facility in Newcastle were each found unresponsive in a seriously hypoglycaemic state requiring urgent medical attention. It was subsequently established that each had been injected with high doses of insulin in circumstances where there was no medical need for such treatment.

2. [8]

   Two of the residents, Ms Gwendolyne Fowler, aged 83, and Mr Ryan Kelly, aged 80, died as a result of the injection. The third resident, Ms Audrey Manuel, aged 91, remained in hospital for a significant period of time. She never regained the same level of functioning as she had enjoyed before the injection. Ms Manuel died from unrelated causes in January 2015.

3. [9]

   The Crown case was that it could readily be inferred that whoever injected the victims with the insulin did so deliberately with an intention to kill. The Crown further alleged that the same person administered the insulin to each of the three victims and that that person was the applicant.

4. [10]

   As at October 2013, the applicant was aged 26 and was employed as a Team Leader Aged Care Worker at the SummitCare aged care facility at Wallsend. He worked the morning shift from 6.30am until 3pm on both 18 and 19 October 2013.

5. [11]

   The Crown case was that the applicant had injected each of Ms Fowler, Ms Manuel and Mr Kelly with insulin. Ms Fowler was injected on 18 October 2013. At the time there was not thought to be any reason for suspicion and she passed away the following day at about 12.50pm. Ms Manuel and Mr Kelly were given injections on 19 October 2013. Mr Kelly died on 29 October 2013.

6. [12]

   At trial, there was no dispute that each of the victims was injected with insulin when there was no medical need to do so. The focus of the trial was whether it was the applicant who was responsible for giving the injections. There was no direct evidence that the applicant was the person who gave any of the three insulin injections. The Crown case against the applicant was circumstantial.

7. [13]

   The circumstances relied upon by the Crown were that the similarities between the events themselves and the surrounding circumstances exhibited a pattern of conduct from which an inference could be drawn that a single perpetrator had been responsible for all of the offences. It followed, so the Crown submitted, that this person had to have been present at the SummitCare facility on both 18 and 19 October in order to carry out these acts, and within certain timeframes said to be established by the expert evidence.

8. [14]

   It was the Crown case that medical evidence established that each injection would have been administered no more than eight hours before each victim was found in a significant hypoglycaemic state. Using this information, CCTV footage and other records kept by the facility, it was the Crown case that police were able to determine that from a total of 319 people seen entering and exiting the premises, 25 people including the applicant were present on each of the days during the relevant time periods when the injections were administered.

9. [15]

   The 25 people consisted of 20 staff members (including the applicant) and five visitors. The evidence was that many of the relevant staff members did not work in the ward where the three victims resided.

10. [16]

    Other than the applicant, and one staff member who had died in the interim, the Crown called each of the remaining 23 people to give evidence.

11. [17]

    In addition to having the opportunity to commit the offences, the circumstantial evidence against the applicant which the Crown relied upon to establish that he was the person who injected all three doses of insulin, included the following:

The judgment (R v Davis [2016] NSWSC 1362)

1. [18]

   In relation to the two charges of murder, the trial judge identified as essential facts to be proved by the Crown that a deliberate act of the applicant caused the deaths of the deceased and that such act was carried out with an intention to either kill or cause really serious bodily harm. His Honour found that the deliberate act relied upon by the Crown was the injection of insulin and the intention asserted by the Crown was that the applicant intended to cause death. In relation to the charge of administering a poison with intent, the trial judge identified the necessity for the Crown to prove beyond reasonable doubt that the applicant deliberately injected insulin into the victim and that he did so with an intention of killing the victim.

2. [19]

   The trial judge further defined the issues in dispute as follows:

3. [20]

   His Honour made a number of findings as to how the aged care facility was run, its staffing and what provision was made for security and the control of visitors. None of this material was controversial, and none of his Honour’s findings on these issues was challenged on appeal. The findings were:

4. [21]

   The evidence concerning the three victims’ state of health, both before and after the administration of the insulin, was also not controversial. An understanding of that material, however, is necessary for an understanding of the issues raised in the appeal, in particular Ground 2. Because the trial judge’s findings on that issue were not controversial and not challenged in this appeal, they also can be set out. These unchallenged factual findings were:

5. [22]

   His Honour also reviewed the evidence of the medical experts and concluded that the injections occurred within eight hours of the victims displaying significant symptoms of hypoglycaemia. His Honour found that it was quite likely that the period was shorter than that, but it was safer to act upon an eight hour period. He therefore concluded that Ms Fowler was injected at some time after 8am on Friday, 18 October, Ms Manuel was injected at some time after 3.30am on Saturday, 19 October and Mr Kelly was injected on that same day, at some time after 7am. His Honour’s approach to the expert evidence and his conclusions have been challenged in this appeal.

6. [23]

   The expert evidence as to the timeframe, within which the injections of insulin would have occurred, provided the basis for the police investigation. The police also had regard to SummitCare records and the CCTV camera film to establish who was at the facility between 17 – 19 October 2013 and at what times. His Honour noted that before the records were handed over to police, they were cross checked by SummitCare staff to ensure their accuracy. His Honour further noted that police did not conduct a physical search of the facility because the offending was not brought to their attention until the evening of 21 October. The crime scene had by that time become “contaminated”. Using that information, police prepared a spreadsheet which became Exhibit D. This was prepared to show the times at which various persons were in attendance at the SummitCare facility, and extended from 5am on Friday, 18 October to 6pm on Saturday, 19 October.

7. [24]

   His Honour found that there was no dispute at trial as to the accuracy of the content of Exhibit D. What was challenged, however, was whether the timeframe covered by the spreadsheet was extensive enough to have included all persons who had the opportunity to administer insulin injections to the victims. The proposition underlying the preparation of Exhibit D, i.e. that there was only one offender involved in all three offences was also challenged.

8. [25]

   His Honour noted that Exhibit D referred to 319 persons. Of those 319, police were able to identify all but 35 persons. It was the Crown case that the inability to identify 35 persons did not invalidate the utility of the spreadsheet because each of those unknown persons only attended the facility on one of the two days under consideration. His Honour accordingly accepted that if the “one-perpetrator” theory was made out, the 35 unidentified persons could be excluded.

9. [26]

   His Honour noted that through a process of elimination, based upon the “one-perpetrator” theory and upon the expert opinion that the injections occurred no more than eight hours before the victims were found with symptoms, police determined that there were potentially 25 people, including the applicant, who could be responsible for the offences. Of those 25 people, 5 were visitors to the facility and 20, including the applicant, were members of staff.

10. [27]

    His Honour took into account the applicant’s statements to police between October and December 2013. His first statement was made on 24 October 2013 and set out his background and duties at SummitCare. His Honour’s summary of the content of the applicant’s statements is uncontroversial and has not been challenged:

11. [28]

    The applicant made a second statement to police in which he specifically referred to his interaction with the victims on 18 and 19 October 2013:

12. [29]

    Police interviewed the applicant on a third occasion on 21 August 2014. The interview was recorded and was very lengthy, having occupied over seven hours. By agreement between the parties, it was edited and about one-third of the recording was tendered. His Honour took into account the applicant’s demeanour during the interview and noted that one of the major topics discussed was the exchange of text messages between the applicant, Ms Debbie Wilson, Ms Raylene Collins and Ms Monique Christensen. His Honour summarised the rest of the statement. That summary is not controversial and has also not been challenged in the appeal:

13. [30]

    The applicant was arrested at his home on 17 December 2014. He largely exercised his right to silence and his Honour did not draw any adverse inference from that. The applicant did tell police “I didn’t do it” and specifically that he did not kill Ms Fowler, Mr Kelly nor attempt to kill Ms Manuel. He also reiterated that he could not think of anyone who could have committed the offences.

14. [31]

    His Honour dealt with the text messages in some detail. He considered first the communication with Ms Wilson, who was an AIN at Summitcare. She worked night shift on 17 October and on Friday, 18 October. The text was initiated by Ms Wilson at 11.14am on Saturday, 19 October. Ms Wilson gave her interpretation of the meaning of the text in evidence and the applicant gave his interpretation in his statement to police of 21 August 2014.

15. [32]

    There were also texts with Ms Raylene Collins, who was an AIN, who worked the night shifts on 17 – 19 October 2013 in the Parkview ward with Ms Wilson. At 4.13pm on Saturday, 19 October Ms Collins received a text message from the applicant. Following that message, there was a further exchange on the Saturday evening at approximately 8pm. Ms Collins gave evidence as to her understanding of the texts.

16. [33]

    There was an exchange of texts with Ms Monique Christensen on Saturday, 19 October 2013 at about 10pm. Ms Christensen was a friend of the applicant.

17. [34]

    The trial judge set out in detail the questions and answers put by police to the applicant in relation to the content of the texts with Ms Wilson and Ms Collins at [169]-[182] of the judgment. It is fair to say that the applicant’s responses were not particularly convincing. An example is as follows:

18. [35]

    His Honour set out his conclusion in relation to the text messages as follows:

19. [36]

    Other bases for that conclusion in relation to the texts are set out at [255]-[261] of the judgment. There, his Honour concluded:

20. [37]

    In relation to similarities between the events and the application of coincidence reasoning, the trial judge gave the following analysis:

21. [38]

    His Honour then considered alternative hypotheses put forward by the defence as to the perpetrator being someone other than the accused. His Honour noted that the defence had questioned the legitimacy of the theory that there was only one perpetrator.

22. [39]

    In relation to that issue, his Honour found:

23. [40]

    The trial judge identified the various hypotheses put forward on behalf of the applicant to the effect that the perpetrator was not him. They were:

    1. (1)

       An unidentified person who entered without being captured on CCTV.

    2. (2)

       A resident of the SummitCare aged care facility.

    3. (3)

       A visitor to the SummitCare aged care facility.

    4. (4)

       Someone else as the perpetrator.

    5. (5)

       Another staff member (excluding the applicant) as the perpetrator.

    6. (6)

       A woman as the perpetrator.

    7. (7)

       “Anything might be possible” by reference to the evidence.

24. [41]

    His Honour set out why those alternative hypotheses lacked substance. In relation to the “anything might be possible” alternative, his Honour had regard to the lack of motive and the adequacy of the police investigation which had been criticised by defence counsel. On that last issue, his Honour concluded:

25. [42]

    As a last step in his analysis, the trial judge put together the elements of the circumstantial case against the applicant. As the starting point, his Honour concluded that the same person had committed the three offences:

26. [43]

    The other circumstances to which his Honour had regard were:

    1. (1)

       The applicant was on duty in the Mountview ward when the injections were given.

    2. (2)

       The applicant was skilled and experienced in the injection of insulin.

    3. (3)

       The applicant administered insulin to two insulin dependent residents of Mountview ward on the mornings of 17 and 18 October.

    4. (4)

       The applicant was found in possession of needles, syringes and information about insulin.

    5. (5)

       The applicant had access to insulin.

    6. (6)

       The applicant had the opportunity to give the injections.

    7. (7)

       The relationship between the applicant and the victims.

    8. (8)

       Other potential perpetrators have been eliminated.

    9. (9)

       The effect of the text messages when taken with the other circumstances.

Relevant legal principles

1. [44]

   The High Court has summarised the correct approach to be taken in a circumstantial evidence case in The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 (French CJ, Kiefel, Bell, Keane and Gordon JJ):

2. [45]

   In Lane v R [2013] NSWCCA 317 the Court of Criminal Appeal (Bathurst CJ; Simpson and Adamson JJ) spoke of the “very real distinction between drawing an inference from proven facts and engaging in speculation”:

3. [46]

   The determination of this appeal is governed by s 6(1) of the Criminal Appeal Act 1912 (NSW):

4. [47]

   In their joint judgment in Filippou v The Queen [2015] HCA 29; 256 CLR 47 French CJ, Bell, Keane and Nettle JJ said:

Preliminary matter

1. [48]

   At the commencement of oral submissions in the appeal, senior counsel for the applicant submitted that one of the hypotheses available to the applicant, which had not been rebutted by the Crown, was that the insulin could have been accidentally administered to each of the victims, i.e. that the Crown had failed to establish that in each case the insulin had been deliberately administered. On behalf of the applicant, it was submitted that although such an alternative had not been raised in terms at the trial, the applicant could rely upon it in these proceedings because it simply involved a question of emphasis and it was a matter which the Crown was obliged to prove in any event.

2. [49]

   This submission cannot be accepted. There are a number of reasons for this.

3. [50]

   It is clear that the trial was not run on that basis. In his opening, the following exchange took place between the trial judge and counsel for the applicant:

4. [51]

   In his closing address, counsel for the applicant was even clearer on this issue:

5. [52]

   There was never a submission at trial to the effect that there was a possibility in respect of one or more of the victims that there was an accidental administration of insulin. There was no evidence to that effect other than speculation by Dr Gay, Ms Fowler’s general practitioner, at an early point in time that there might have been a medication error. That was never pursued or expanded on at trial.

6. [53]

   Significantly, the reports of two of the experts, Drs Quach and Tran, were tendered and they were not required for cross-examination. In his report of 7 November 2013 (AB 490) Dr Quach commented on the very high levels of insulin found in Ms Manuel and Mr Kelly as follows:

7. [54]

   Dr Tran’s report of 7 November 2013 was to similar effect. He reported:

8. [55]

   In further confirmation that accidental administration was never suggested at trial, none of the witnesses who were responsible for injections of insulin was questioned, i.e. the registered nurses, about whether there was or was likely to have been an accidental injection of insulin by one of them. The issue was never explored with the registered nurses because it was not an issue at trial. The trial was run without demur on the part of the defence on the basis that the necessary intention to kill would be inferred from the act alone. This act was the deliberate injection of a high quantity of insulin to non-insulin dependent residents on each occasion over the course of a two day period.

9. [56]

   The case for the defence was that the applicant did not inject the victims. There was an acknowledgement by the defence that somebody committed the crime but not him. Inherent in that acknowledgement is an acceptance that the act of injecting the victims was deliberate, and not accidental.

(a) Admitting evidence for a coincidence purpose

1. [57]

   The applicant relied upon the following statements of principle in support of this ground: DSJ v R; NS v R [2012] NSWCCA 9 (Whealy JA):

2. [58]

   R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 (Simpson J, McClellan CJ at CL and Fullerton J agreeing):

3. [59]

   The applicant submitted that it followed from those statements of principle that the particular fact in issue must be identified with precision before any decision can be made as to its admissibility under s 55 (relevance) or s 98 (significant probative value) of the Evidence Act 1995 (NSW) (the Act). The applicant accepted that defence counsel at trial did not dispute that the injections had been administered deliberately and that the issue at trial was whether in each case it was the applicant who was responsible for injecting the victims.

4. [60]

   The applicant submitted that both the Crown and the trial judge proceeded on an erroneous construction of s 98 by failing to identify the particular issue which was sought to be established by the use of coincidence reasoning, with the result that the inferential reasoning process set out by Simpson J was limited to the first three steps set out above. The failure to identify the ultimate inference [step 4] meant that the determination under ss 98 and 101(2) of the Act proceeded on an erroneous basis, i.e. that coincidence reasoning could be used to “narrow down” the range of potential suspects.

5. [61]

   The applicant accepted that the trial judge had correctly noted that the issue was really one of whether coincidence reasoning could be deployed, as opposed to whether the evidence sought to be used for this purpose was itself admissible and that a central element of the Crown case against the applicant was that “one person” had been responsible for injecting each of the victims.

6. [62]

   The applicant submitted that in line with what was said in DJS and Duckworth, the correct approach to s 98 was to determine first the particular fact in issue which was sought to be established (for the purposes of determining the question of relevance under s 55). The applicant submitted that in respect of each count, the only fact in issue was whether he was the person who had administered the relevant injection or injections, i.e. the ultimate inference of Simpson J’s inferential reasoning process “therefore the person in question did a particular act or had a particular state of mind”.

7. [63]

   In further support of that proposition, the applicant referred to R v Merritt [1999] NSWCCA 29 at [39] where the Court (Wood CJ at CL; James and Adams JJ) said:

8. [64]

   The applicant submitted that this statement was apposite to this case and that on the facts of this case, “the existence of one event” needed to be established with sufficient specificity to inculpate the applicant, it being the case that the applicant did not contend that the events occurred coincidentally or else by accident.

9. [65]

   The applicant submitted that put another way, the trial judge needed to satisfy himself that the applicant had been responsible for the administering of at least one of the relevant injections before the judge could deploy coincidence reasoning to infer that, because the applicant was guilty on one count, he was guilty on all three counts.

10. [66]

    The applicant submitted that such an approach was consistent with what was said by this Court in Gilham v R [2012] NSWCCA 131 which concerned a situation in which three people, being the father, mother and brother of the appellant, had been stabbed to death in the family home. The appellant admitted to having killed his brother but denied being responsible for the death of his parents. The defence case was that the appellant’s brother had stabbed and killed their parents, set the bodies alight and that the appellant had then killed his brother. The applicant submitted that the principal fact in issue in Gilham was the identity of the person who had stabbed the parents, with the only two possible perpetrators being the appellant and his deceased brother. The applicant noted that the Crown argued in Gilham that there were similarities between the stab wounds in each of the three deceased persons and that this pointed to the perpetrator of each homicide being the same person.

11. [67]

    In support of that proposition, the court in Gilham (at [328]) said:

12. [68]

    The applicant submitted that in Duckworth, after explaining the inferential reasoning process involved in the use of coincidence evidence, Simpson J set out the discrete steps for arriving at a determination as to the admissibility of that evidence under s 98.

13. [69]

    The applicant submitted that in Duckworth Simpson J had observed that in relation to this step-wise process for determining the admissibility of coincidence evidence in criminal proceedings, “the final and central question is whether the probative value of the evidence “substantially outweighs” its obvious “prejudicial effect” (s 101(2) of the Act). It is to be understood that the “prejudicial effect” of a particular item of evidence is the risk that a jury might in some way misuse it (Duckworth at [34]).

14. [70]

    By reference to those matters, the applicant submitted that the trial judge had erred in finding that “the evidence does have significant probative value for the reasons that appear elsewhere; it outweighs the non-existent prejudicial effect” (at [196]). The applicant submitted that this error flowed from a failure to consider the particular fact in issue which was sought to be established by the inferential reasoning process involved in the use of coincidence evidence. The applicant submitted that the similarities between the three events themselves and the surrounding circumstances bore little or no relation to the applicant, which meant that the purported coincidence evidence could not meet the threshold test under s 98 because it lacked probative value, let alone significant probative value.

15. [71]

    The applicant submitted that in the present case, the probative force of the proposed coincidence evidence was severely diminished by the lack of any direct evidence linking the applicant to any one of the so called “attacks”. He submitted that if the Court were satisfied that the applicant had been responsible for one or more of the relevant injections, for example because someone had witnessed him administering that particular injection, then coincidence reasoning could be deployed to draw the inference that he was responsible for the others, even though there was no direct evidence. The applicant submitted that that proposition is reinforced by the wording of s 101(2) which proscribes evidence adduced by the prosecution “about a defendant” from being used “against the defendant” unless its probative value substantially outweighs any prejudicial effect it may have “on the defendant”.

16. [72]

    The applicant submitted that while it was true that a determination as to whether proposed coincidence evidence has significant probative value for the purposes of ruling on its admissibility under this section, may be reached having regard to all of the evidence adduced or sought to be adduced by the party seeking to tender it, it may also be necessary to have regard to an alternative explanation arising on the evidence (DJS at [78] per Whealy JA).

17. [73]

    The applicant submitted that there was a possibility, reasonably open on the facts, that these offences had been committed by two or more people, whether in pursuit of a joint criminal enterprise or otherwise, and that the existence of this alternative explanation would further diminish the probative value of the proposed coincidence evidence.

Consideration

1. [74]

   Section 98 relevantly provides:

2. [75]

   Section 101 of the Act relevantly provides:

3. [76]

   The constraint sought to be imposed by the applicant on the application of s 98 is not justified by its wording or by authority. There is no requirement in the application of s 98 in this case for there to be evidence directly linking the applicant to any of the instances involving the wrongful injection of insulin. To impose such a requirement flies in the face of the wording of s 98 and the proper approach to a circumstantial case. While it is true that the fact in issue to which the coincidence evidence relates has to be clearly identified, the fact in issue does not necessarily have to involve a direct link between the applicant and one of the episodes of insulin injection.

4. [77]

   It is clear from the Crown case and his Honour’s judgment that a key issue at trial was whether the Crown could prove that one person alone was responsible for injecting each of the victims. It is for that reason that his Honour treated that issue as a matter which the Crown had to prove beyond reasonable doubt (judgment [199], [238], [262]). That issue was an essential intermediate fact which had to be established by the Crown to the criminal standard. The applicant acknowledged that proposition in his submissions.

5. [78]

   A coincidence notice had been served by the Crown, relying upon similarities in each of the three injection of insulin events. This needed to be established as a step in establishing that the applicant did the acts set out in the indictment. The Crown’s case was that it was improbable that these events and the circumstances occurred coincidentally and involved the acts of different persons. The Crown’s position was that these were deliberate acts by the applicant alone. This was the issue to which the coincidence reasoning was directed.

6. [79]

   For obvious reasons, there was no application to sever the indictment and so the evidence in respect of each of the three counts was properly before the trial judge in the trial, regardless of the coincidence notice. The issue, as his Honour understood, was whether coincidence reasoning could be utilised in respect of the three counts, the facts of which were already before him. Because this was a judge alone trial, it was agreed that a ruling in relation to the permissibility of using coincidence reasoning would be made at the end of the trial as part of his Honour’s judgment.

7. [80]

   The Crown in its closing address made submissions about the similarities in the three insulin injection events and the circumstances in which they occurred which pointed to the same person being the perpetrator in each case (T.803, AB 2118). The Crown went through the circumstantial evidence relied upon by it to establish that the single perpetrator was the applicant.

8. [81]

   As his Honour noted, defence counsel at trial never articulated a challenge in the form of an objection to the use of coincidence reasoning. His arguments were confined in his closing address to the strength of the Crown arguments as to the similarity. For abundant caution, his Honour nevertheless indicated that he was satisfied that the evidence had significant probative value for the purposes of s 98 of the Act (judgment [195]-[196]) for reasons which appeared elsewhere in his judgment. He further ruled that s 101(1) of the Act was also satisfied (particularly in the context of a judge alone trial). As a result, he concluded that the evidence in relation to the individual counts was available to be utilised as coincidence evidence in relation to the other counts. Importantly, as his Honour again observed, there was little advanced by defence counsel at trial in his closing address in support of the contention that there might have been more than one person responsible for the three crimes beyond a bare assertion that that was possible (judgment [198]).

9. [82]

   The trial judge found that the three crimes were “far from typical; they were confined to a very small pool of potential victims in a relatively confined place and in a relatively short timeframe”. He found that they needed to be perpetrated by a person with particular knowledge and ability who had a connection with, and access to, the victims (judgment [199]).

10. [83]

    The trial judge was satisfied that having regard to all of the circumstances and similarities, the conclusion that there was only one perpetrator was inescapable (judgment [199]).

11. [84]

    The thrust of the applicant’s challenge to his Honour’s reasoning, as set out above, was that the similarities between the insulin injection events and the surrounding circumstances bore little or no direct relationship to him. It was on this basis that the applicant submitted that the coincidence evidence “lacked probative value, let alone significant probative value”. This was the basis for the applicant’s overall submission that in relation to this ground of appeal, the trial judge’s use of evidence for coincidence purposes to infer one person was responsible for injecting each of the victims, was wrong.

12. [85]

    As already set out, such an interpretation is not justified either by the wording of s 98 or by authority. His Honour’s approach was in line with the approach of this Court in R v Ceissman [2010] NSWCCA 50 at [9] where the principal fact in issue ultimately was the identity of one of the offenders and whether the Crown could prove beyond reasonable doubt that it was the offender in that case. Latham J (McClellan CJ at CL and Schmidt J agreeing) said:

13. [86]

    The principal fact in issue in this case was whether it was one person who injected all three victims, that person being the applicant.

14. [87]

    The chain of reasoning advanced by the Crown was:

    1. (1)

       The coincidental nature of the “related events” allowed the inference to be drawn that the three offences were committed by the same offender; and

    2. (2)

       The circumstantial evidence relied upon by the Crown established the applicant to be that one offender.

15. [88]

    This is in line with the approach in R v Ceissman where Latham J said:

16. [89]

    The Court in R v MR [2013] NSWCCA 236 (Beech-Jones J with whom Hoeben CJ at CL agreed) made it clear how important it is to distinguish between the two steps:

17. [90]

    When one applies that reasoning to the facts of this case, the first step in the chain of reasoning was to establish that the same offender administered each of the three injections. The second step was laying out the circumstantial evidence upon which the Crown relied to show the applicant’s involvement in the three offences. The third step was showing that the combination of those two matters meant that on the Crown case it was established beyond reasonable doubt that he was involved in all three offences.

18. [91]

    It was open to his Honour to conclude in this instance that having regard to the similarities in the three insulin injection events, and the circumstances in which they occurred, the evidence was capable of rationally affecting the probability of a fact in issue, namely whether the same offender was involved in each offence. The test posed by s 55 was therefore satisfied. As was said in R v MR:

19. [92]

    The next step in addressing s 98(1)(b) of the Act and consistent with the opening words of that section is to address the question of whether the applicant was involved in each of the offences. However, most importantly at this step, the evidence of the events can be considered “on its own account or by having regard to other evidence to be adduced by the tendering party” (DSJ v R; NS v R at [72]; R v MR at [95]). This includes having regard to the circumstantial evidence that the Crown relied upon in the case against the applicant to connect him to the offences including for example, the process that was undertaken in eliminating other people and the circumstances that were addressed at judgment [238]-[261].

20. [93]

    Having regard to all of the evidence adduced by the Crown, the evidence of the related events had the capacity to be of importance or of consequence in establishing the fact in issue, namely the involvement of the applicant in each of the offences. It was, therefore, clearly open to his Honour to find that the requirements of s 98(1)(b) and s 101 were satisfied and to use the evidence as coincidence evidence.

21. [94]

    As earlier indicated, there is no requirement in order for the evidence to have significant probative value, that there be direct evidence linking the applicant to a particular injection incident. Circumstantial evidence can be just as convincing and reliable as a case based on direct evidence (El Hassan v R [2007] NSWCCA 148 (Hunt AJA; with whom Johnson and Latham JJ agreed) at [27]). Further the circumstantial evidence implicating the applicant could, as it did in nearly all instances in this case, relate to all three offences not just one of them. The exception to this was the text messages which related only to Ms Manuel and Mr Kelly.

22. [95]

    The applicant’s submissions on this issue conflate concepts relating to the admissibility of coincidence evidence and the process of reasoning that can then be deployed once evidence has been admitted for a coincidence purpose.

23. [96]

    The applicant’s submission that the combined operation of ss 98 and 101 of the Act precluded the use of coincidence evidence unless and until the trial judge was satisfied to the criminal standard of proof that the applicant was responsible for one or more of the insulin injection incidents considered separately should not be accepted. Sections 98 and 101 only relate to issues going to the admissibility of coincidence evidence. There was no requirement at the stage of determining admissibility for his Honour to make any determination of guilt in relation to any count beyond reasonable doubt.

24. [97]

    In assessing significant probative value, his Honour was simply required to take the evidence at its highest and determine if it had the capacity to be of importance or of consequence in establishing the fact in issue (IMM v The Queen [2016] HCA 14; 257 CLR 300). Further, even in terms of deploying coincidence reasoning, where counts are cross-admissible as coincidence evidence, there is no requirement that the tribunal of fact must find one of the offences proved beyond reasonable doubt before they can use that count as a basis for coincidence reasoning in relation to other counts (Folbigg v R [2005] NSWCCA 23; 152 A Crim R 35 (Sully J with whom Dunford and Hidden JJ agreed) at [103]).

25. [98]

    Ground of Appeal 1(a) has not been made out and should be dismissed.

Ground 1(b) – The trial judge erred in a process of “backwards reasoning” thereby reversing the onus of proof.

1. [99]

   The applicant submitted that the trial judge engaged in a process of “backwards reasoning” (or “reverse reasoning”) to establish the guilt of the applicant on all three counts and that this process was erroneous. The applicant submitted that in large part, the trial judge reasoned that the applicant was guilty of all three counts because he was effectively the “last man standing” after other suspects were excluded.

2. [100]

   The applicant submitted that the reasoning process which was adopted by the trial judge was that which was employed by the investigating police to narrow down the list of potential suspects and later by the Crown in its case against the applicant. The applicant submitted that this mode of reasoning was flawed because:

3. [101]

   In order to substantiate those submissions, the applicant relied upon the following extract from the judgment (judgment [238]) where the trial judge said:

4. [102]

   By reference to that part of the judgment, the applicant submitted that the combined operation of s 98 and 101 of the Act precluded the use of coincidence reasoning unless and until the trial judge was satisfied to the criminal standard of proof that the applicant was responsible for one or more of the charged acts considered separately.

5. [103]

   In support of that proposition, the applicant submitted that the question of whether in such a case it was necessary for the tribunal of fact to be satisfied beyond reasonable doubt as to the existence of each fact from which the inference of guilt is to be drawn, was considered by Dawson J in Shepherd v R [1990] HCA 56; 170 CLR 573 at 579 and 581:

6. [104]

   The applicant submitted in relation to Ground 1 that the trial judge’s use of the evidence for a coincidence purpose – to infer that “one person” was responsible for injecting each of the victims – constituted a wrong decision on a question of law and that this error gave rise to a miscarriage of justice in the sense of a departure from a trial according to law. The applicant submitted that this constituted a substantial miscarriage of justice because the trial judge then relied upon this inference to reason backwards to the guilt of the applicant, effectively reversing the onus of proof and thereby depriving the applicant of a chance of acquittal which was fairly open to him.

Consideration

1. [105]

   Consistent with the process of reasoning that has been referred to in relation to Ground 1(a) above, what his Honour had to be satisfied of beyond reasonable doubt in this case, because it was an essential intermediate fact, was that the coincidental nature of the three insulin injection events allowed the inference to be drawn that the three offences were committed by the same offender and that the circumstantial evidence relied upon by the Crown implicated beyond reasonable doubt the applicant as that offender. This was the approach that his Honour adopted. It clearly does not involve as contended by the applicant his Honour engaging in a process of “backwards reasoning”.

2. [106]

   Implicit in the first ground of appeal is the proposition that there was “a possibility reasonably open on the facts that these offences had been committed by two or more people whether in pursuit of a joint criminal enterprise or otherwise” and the existence of this alternative explanation further diminished the probative value of the proposed evidence.

3. [107]

   It is accepted that the trial judge in forming a view as to whether the evidence had significant probative value, must have considered by reference to all of the Crown’s evidence, whether there emerged a real possibility of an explanation inconsistent with guilt of the party tendering it. The court must ask whether that real possibility substantially alters its view as to the otherwise significant capacity of the coincidence evidence to establish the fact or facts in issue. However, it is clear from his Honour’s reasoning and the circumstances and similarities which his Honour took into account, that his Honour did not consider the alternative raised by the applicant as a real possibility. Such a finding beyond reasonable doubt was clearly open to his Honour.

4. [108]

   This ground of appeal has not been made out.

(i) The Crown timeline in Exhibit D.

1. [109]

   The applicant submitted that although defence counsel at trial did not object to the admission of Exhibit D, this document only had evidentiary value insofar as the “one perpetrator” theory (which was submitted to be erroneous) was accepted. The applicant submitted that nevertheless the trial judge erred in accepting what was thought to be established by Exhibit D because the exhibit had a number of errors and was flawed in how it was set out, which rendered it unreliable.

2. [110]

   The first issue identified by the applicant was that the timeline upon which Exhibit D was based was incorrect. The applicant submitted that the evidence concerning the onset of hypoglycaemia in the case of Ms Fowler, was incorrectly assessed because it did not have regard to the likelihood that she was experiencing symptoms at lunchtime. The applicant submitted that if such symptoms were present at lunchtime, then the timeline established by Exhibit D was wrong and that the injection of insulin to Ms Fowler could have been administered earlier than the earliest time considered by investigating police and set out in Exhibit D, i.e. 4am.

3. [111]

   The applicant submitted that there was support in the evidence of Professor Carter and Professor Yue for the proposition that the timeline provided for in Exhibit D should have been much more extensive than from 5am on Friday, 18 October to 6pm on Saturday, 19 October. In those circumstances, the applicant submitted that the time at which Ms Fowler started exhibiting symptoms of hypoglycaemia was an intermediate fact which was an indispensable step upon the way to an inference of guilt.

4. [112]

   The applicant submitted that the Crown case depended to a significant extent upon establishing the following matters as “links in a chain”:

   1. (1)

      The identity of the persons who were present at the facility at some time over the relevant timeframe.

   2. (2)

      The exclusion of those persons who were there on only one of the two days in question.

   3. (3)

      The exclusion of those persons who were present on both days, but outside of the relevant timeframe in respect of one or more of the victims.

5. [113]

   The applicant submitted that the Crown’s failure to factor into the timeline that Ms Fowler started becoming hypoglycaemic at lunchtime was fatal to the Crown case. This was because the possibility that she had been injected as early as 4am on 18 October could not be excluded as an inference reasonably available on the evidence.

6. [114]

   The applicant submitted that apart from that problem, there were other difficulties affecting the accuracy of Exhibit D. The applicant submitted that his Honour erred in relying upon Exhibit D because it was not a sound basis for inferring what it sought to establish, i.e. the identity of the people whose presence at the facility during the relevant times cast them under suspicion.

7. [115]

   The applicant submitted that it was wrong to exclude the 35 people who could not be identified on the basis that they were not present at the aged care facility on both days. The applicant submitted that such a finding amplified the error in accepting the “one perpetrator” theory and diminished the proper focus which should have been directed to each count individually. The applicant submitted that those problems with Exhibit D rendered it unreliable and not a firm basis from which to draw inferences and make findings.

(ii) Further submissions on expert evidence

1. [116]

   The applicant submitted that there were a number of other issues with the expert evidence which severely limited the support which Exhibit D could provide for the case against him.

2. [117]

   In support of that submission, the applicant analysed the evidence of Dr Song and set out reasons why his conclusions were unreliable and that it was not open to his Honour to find that the insulin found in the blood serum samples of Ms Manuel and Mr Kelly had “an identical chemical makeup”. The applicant submitted that Dr Song’s testing was limited and therefore it was not open to make that finding on the evidence.

3. [118]

   The applicant challenged the findings by his Honour that he had access to insulin. The applicant submitted that there was no evidence to suggest that the insulin in fact came from any of the treatment rooms in the facility so that the fact that he could access these rooms was largely irrelevant. The applicant submitted that alternatively, there was no evidence or suggestion that insulin was difficult to obtain or that there would have been any difficulty in him bringing insulin to the facility undetected. The applicant submitted that on that alternative basis, the inference that he had some kind of special access to insulin which others did not, was of little consequence.

(iii) The conversation with Mr Kelly

1. [119]

   The applicant noted that investigating police were able to speak to Mr Kelly on 22 October 2013 before he died and that they asked him who had given him the injection. The applicant relied on the following conversation between Mr Kelly and Detective Little which was recorded by Detective Stephen in his notebook:

2. [120]

   The applicant also referred to the evidence of Mr Kelly’s granddaughter, Ms Kathleen Lowe, who visited him on a number of occasions when he was in hospital. She gave evidence that when she went to see him on 19, 20 , 21 and 25 October he was not responsive. On 24 October, which was his birthday, he regained some form of consciousness but was unable to respond to her verbally. She was able to converse with him on 27 October but he was unable to recognise her and thought that her husband was one of his grandsons.

3. [121]

   In cross-examination, she agreed that Mr Kelly had not been mistaken as to her husband’s gender, but had just mistaken him for another male.

4. [122]

   The applicant submitted that the evidence of Mr Kelly that a “woman” administered the injection to him should have been given weight in the judgment of the matter for the following reasons:

5. [123]

   The applicant submitted that Mr Kelly’s recorded answers were responsive to the nature of what he was being asked. The applicant drew attention to his response on 22 October that the injection had taken place “three days ago”, i.e. 19 October. This was correct according to the expert medical evidence. The applicant submitted that this evidence gave rise to a reasonable possibility that Mr Kelly had been injected by a woman and that this evidence should have engendered a real doubt that he was responsible for injecting Mr Kelly.

Factors said to distinguish the applicant

1. [124]

   The applicant noted that in his reasons the trial judge had listed factors which he regarded as inculpating him by comparison with other people who were present at the aged care facility during the relevant timeframes. The applicant submitted that these factors provided very little support for the Crown case, particularly if his Honour was wrong in adopting the “one perpetrator” theory.

2. [125]

   The applicant challenged the following factors:

(a) Presence

1. [126]

   The applicant challenged his Honour’s finding (judgment [239]) that the applicant was on duty in the Mountview ward when the injections were given. The applicant noted that issue had already been taken with the Crown timeline in relation to Ms Fowler and that there were a number of other employees of the aged care facility in the Mountview ward at those times.

(b) Tendency Type Reasoning

1. [127]

   The applicant referred to the judgment at pars [241] and [246] which contained the following findings:

2. [128]

   The applicant submitted that in those findings the trial judge erred by engaging in tendency type reasoning, the relevant tendency being that of the applicant to inject residents with insulin when he was not authorised to do so. By reference to ss 97(1) and 101(2) of the Act and the statements of principle by the High Court in Hughes v The Queen [2017] HCA 20; 92 ALJR 52 the applicant submitted that his Honour had used the evidence about the applicant continuing to inject patients, even after the change in policy, for a tendency purpose. The applicant submitted that this had the effect of affording the evidence a significance which was not appropriate and which consequently had a bearing on the ability of the evidence, taken as a whole, to reasonably support the convictions.

3. [129]

   The applicant submitted that in line with Hughes v The Queen, two matters should have been considered by his Honour for the purposes of s 97(1)(b), namely:

   1. (1)

      The extent to which the evidence supported the tendency; and

   2. (2)

      The extent to which the tendency made more likely the facts making up the charged offence.

4. [130]

   The applicant submitted that even if the evidence provided some support for the inference that he had a tendency to inject insulin-dependent residents in spite of the fact that he was not authorised to do so, that tendency did not make it more likely that he administered the relevant injection to the victims or in circumstances where he intended to cause harm. The applicant submitted that there was a material difference between injecting a person who required insulin in breach of the new facility policy and injecting a person who did not require insulin when the likely result would be death or serious injury. The applicant submitted that primarily because of this difference, using any evidence of breaching an internal insulin policy for a tendency purpose risked giving the evidence too much weight. The applicant submitted that the evidence did not have significant probative value and that accordingly s 97 ought to have prevented the evidence being used for a tendency type purpose. The applicant also noted that this was not a factor that was peculiar to the applicant in that he was not the only team leader who had continued administering insulin to patients (as medically required) after the policy changed earlier that year.

(c) Items found at the home of the applicant

1. [131]

   The applicant noted that his Honour took into account that he was found in possession of needles, syringes and information about insulin when his home was searched on 5 December 2013 (judgment [242]-[244]). The applicant submitted that his Honour gave excessive weight to this material, particularly when one took into account that no video recording of the execution of the search warrant was included in the exhibits. This left many unanswered questions in relation to what other material was found in the applicant’s room and in the “black bag”.

(d) Opportunity – access to insulin and relationship with victims

1. [132]

   The applicant submitted that having access to insulin was not a factor peculiar to the applicant. The applicant submitted that before his Honour could find at [246] that he “clearly had the opportunity [to give the injections], probably more than anyone else” a more precise timeframe for when the injections were actually administered should have been proved. The applicant submitted that without knowing whether Ms Fowler and Ms Manuel were injected before the applicant’s arrival on the mornings in question, it was erroneous to infer that he had the “opportunity” to administer the injections. The applicant submitted that it was also not open to his Honour to find that he probably had more opportunity to administer injections than anyone else in circumstances where there were registered nurses on duty at the time in the Mountview ward.

2. [133]

   The applicant submitted that his Honour erred in accepting the Crown’s characterisation of the applicant as the victims’ “primary medication giver” so that “they would be less likely to object to him giving them an injection than anyone else, aside from a registered nurse”. The applicant submitted that there was no basis in the evidence to suggest that the victims would have necessarily known the applicant’s position as a team leader. In support of that submission, the applicant relied on the observations by Ms Fowler’s general practitioner as to the extent of her dementia and that the other two victims also suffered a degree of dementia. The applicant submitted that the applicant was not the only person who had a relationship with the victims which included providing them with their medication.

(e) The view of the trial judge in relation to these factors

1. [134]

   The applicant submitted that it was not open to his Honour to make the findings at [252] of the judgment and in particular, that “nursing and care staff who were present at the relevant times, remained possibilities but there is nothing to suggest anyone of them in particular might have been responsible”. The applicant submitted that the effect of that finding was to use the absence of evidence in respect of other potential perpetrators to make up for a shortfall in the evidence which could be used to inculpate him. The applicant submitted that this effectively reversed the onus of proof. The applicant submitted that the only circumstance which was peculiar to the applicant related to the items which were recovered from his residence when police executed the search warrant on 5 December 2013.

(f) The text messages

1. [135]

   The applicant noted that his Honour summarised the evidence relating to the text message exchanges with Ms Wilson, Ms Collins and Ms Christensen at [147]-[181] of the judgment and set out his conclusions in relation to the text messages at [253]-[261].

2. [136]

   By reference to that material, the applicant submitted that his Honour was correct to disregard the text messages sent by him to Ms Christensen as equivocal but that his Honour still fell into error in finding that the balance of the messages supported the inference that he had foreknowledge of the impending or prospective demise of Ms Manuel and Mr Kelly because he knew that they had both received injections of insulin.

3. [137]

   In order to substantiate that challenge, the applicant relied upon the following:

4. [138]

   The applicant submitted that if a person had been responsible for killing three people and had sent texts “predicting” two of their deaths, those messages would have been at the forefront of the mind of that person whereas here, it seems obvious that he had forgotten about these texts altogether.

(g) Shortcomings in the Crown case: lack of motive and inadequacy of the investigation

1. [139]

   The applicant accepted that the Crown was not required to establish motive in order to obtain a verdict of guilty. He submitted that nevertheless in this case the failure of the Crown to establish a motive on his part was significant. This was in a context when there was no direct evidence which provided positive support for the case against him and the circumstantial case depended on the adoption of the “one perpetrator” theory.

2. [140]

   The applicant submitted that his Honour’s observation at judgment [237] that “the evidence is what it is. It is not a matter of there being potentially exculpatory evidence that was not available” tended to obfuscate the fact that the Crown case against the applicant was weak so that the shortcomings in the police investigation were a relevant matter for the trial judge to take into account when considering whether it had been proved beyond reasonable doubt that the applicant was the same person who had committed all these offences. The applicant submitted that even if the concept of reverse reasoning were a proper approach, given the deficiencies in the Crown case, the state of the evidence and the erroneous timeline, investigating police had not successfully eliminated other available individuals and/or suspects.

3. [141]

   The applicant submitted that as defence counsel at trial had observed in his closing address, the items found at the applicant’s residence underscored the imperative of carrying out a physical search of the SummitCare facility as soon as possible. The applicant submitted that any assertion that the police considered and explored all possibilities during their investigation should have been viewed with suspicion by the trial judge, given how little time it took for a search warrant to be executed at the applicant’s home. This was particularly so in the absence of any evidence to suggest that police scrutinised other potential suspects to the same degree as the applicant.

4. [142]

   The applicant submitted that for all these reasons articulated in support of Ground 2, the verdicts were unreasonable and not supported by the evidence at trial. The applicant submitted that it was not open to his Honour to be satisfied beyond reasonable doubt as to his guilt.

Consideration

1. [143]

   The principles upon which an appellate court approaches a ground of appeal from a jury verdict are well settled and are as set out in SKA v The Queen [2011] HCA 13; 243 CLR at [11]-[14] and the authorities therein. The task of this Court is to review the whole of the record of the trial and to make an independent assessment of the evidence, both as to its sufficiency and its quality. If, after giving full weight to the primacy of the tribunal of fact, the appellate court is left in reasonable doubt as to the verdict, it is only where the advantage of the tribunal of fact in seeing and hearing the evidence is capable of resolving that doubt that the Court can conclude that there was no miscarriage of justice.

2. [144]

   As Hayne J said (Gleeson CJ and Heydon J agreeing) in Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]:

3. [145]

   The Crown case was a circumstantial one. As such, the evidence must not be analysed in a piecemeal way. The whole of the evidence, and the inferences which are available to be drawn from it, must be considered and weighed (R v Hillier [2007] HCA 13, 228 CLR 618 at [46]). An approach to the assessment of a circumstantial case which concentrates upon certain parts of the evidence to the exclusion of others is erroneous (Gilham v The Queen [2012] NSWCCA 131; 224 A Crim R 22 at [466]; Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89 at [428]).

4. [146]

   In Dickson v R [2017] NSWCCA 78 Bathurst CJ (with whom Johnson and Fullerton JJ agreed) said at [86]:

5. [147]

   The decision of Filippou v The Queen [2015] HCA 29; 256 CLR 47 makes clear that those principles also govern an appeal like the current one, invoking the first limb of section 6(1) from a finding of guilt after a trial by judge alone: Bell v R [2017] NSWCCA 207 at [20]-[23]; Haines v R [2018] NSWCCA 11 at [12]).

6. [148]

   To the extent that the argument in support of a ground of appeal under s 6(1) takes issue with the correctness of the trial judge’s intermediate findings of fact, this Court must have regard to the reasons stated by the trial judge; Filippou v The Queen at [12], [81]-[83].

7. [149]

   In this case the applicant takes issue with a significant number of his Honour’s intermediate findings of fact. It is, therefore, necessary to have regard to his Honour's reasons. The question for the Court is not whether it is satisfied that his Honour’s findings of fact are correct, but whether his Honour’s findings were not reasonably open (Filippou v The Queen at [56]).

8. [150]

   For ease of reference, I have used the same system of headings as was used in the applicant’s submissions.

(i) Exhibit D

1. [151]

   The injection of the three victims took place on 18 and 19 October 2013. A spreadsheet was prepared by police in order to show the times at which various people were in attendance at SummitCare facility from 5am on Friday, 18 October to 6pm on Saturday, 19 October 2013 in accordance with the CCTV footage from the facility. This spreadsheet became Exhibit D.

2. [152]

   It was tendered without objection from the applicant’s counsel and the Crown stated when it was tendered:

3. [153]

   Consistent with this, his Honour noted in his judgment at [110]:

4. [154]

   The spreadsheet was prepared by police upon the basis of the theory that one person was responsible for all of the injections and in light of the expert opinion that they occurred no more than eight hours before each victim was found in a significant hypoglycaemic state (judgment [114], [115]).

5. [155]

   Based on these premises, it was made clear at trial that police identified 25 potential suspects (including the applicant) who could be responsible. These people were recorded on Exhibit D in red italics (T.88, AB 1403). His Honour also created and attached to his judgment, using Exhibit D, a more concise spreadsheet showing only the persons present on both days. Importantly, there was no cross-examination of the officer in charge by defence counsel at trial in respect of Exhibit D.

6. [156]

   Despite the approach adopted at trial, the applicant now submits that his Honour erred in accepting what was sought to be established by Exhibit D because the timeline upon which the spreadsheet was based was wrong in relation to Ms Fowler. It is also now separately asserted that Exhibit D “contained errors and was otherwise confusing”. Despite that latter assertion, these errors were not further identified in submissions nor was it articulated how the document was confusing. Accordingly, it is not proposed to further address that aspect of the submission.

7. [157]

   In order to challenge the timeframe for Ms Fowler’s injection, considerable reliance was placed upon one answer by Professor Carter, one of a number of experts called in respect of the issue of the timing of the injections. The timeframe relied upon by police and also found beyond reasonable doubt by his Honour on the basis of all of the medical evidence was that the three injections all occurred at most eight hours before significant hyperglycaemic symptoms were displayed by each of the victims (judgment [262]).

8. [158]

   His Honour concluded that he was satisfied on the basis of “reasonable conformity to the expert opinions” that the injections occurred within eight hours of the relevant victim displaying significant symptoms of hyperglycaemia (judgment [105]). His Honour observed that it was quite likely that the period was shorter but that it seemed safer to act upon the eight hour period.

9. [159]

   There was no issue that Ms Fowler was displaying significant hyperglycaemic symptoms when she was found cold, clammy and unresponsive at about 4pm. However, the applicant asserts that Ms Fowler’s behaviour at lunchtime (getting frustrated and trying to bite a care giver) if considered abnormal for her, might indicate that this was the “onset of hyperglycaemia” or when she started “becoming hyperglycaemic”. The applicant therefore contends that the eight hours can be taken backwards from lunchtime to the effect that there was a possibility that the injection was administered as early as 4am. The relevant answer from Professor Carter needs to be carefully examined in its entirety and also in the context of subsequent answers given by him.

10. [160]

    Professor Carter said unequivocally that Ms Fowler was hyperglycaemic about eight hours after breakfast. He only noted that there were big question marks as to whether there were “features of hyperglycaemia” four hours after breakfast, i.e. at lunchtime. Professor Carter later expressly stated that in the case of Ms Fowler, it was “likely that the injection was given around breakfast time, or some time after that”.

11. [161]

    The relevant evidence from Professor Carter was as follows. The reference to “BSL” in the evidence is to “Blood Sugar Levels”:

12. [162]

    Furthermore, the other expert who gave evidence of the time period when Ms Fowler was injected, Professor Dennis Yue, opined that Ms Fowler was “almost certainly” injected after breakfast that morning (T.577). Professor Yue’s evidence was that if Ms Fowler’s irritability during lunch was out of character, that would indicate that she was probably already “mildly hypoglycaemic” at that time and it was consistent with the progressive onset of symptoms. In contrast, the state she was found in during the afternoon (around 4pm) was consistent with very typical symptoms of “severe hypoglycaemia”.

13. [163]

    The evidence of Professor Yue was:

14. [164]

    In addition to the opinion of Professors Carter and Yue, it needs to be kept in mind that when Ms Fowler became frustrated and attempted to bite AIN Matthews at lunchtime, AIN Matthews was untroubled and said to the applicant that this would sometimes happen as Ms Fowler would occasionally become frustrated when being encouraged to eat and drink. That observation is important because AIN Matthews was a person who was quite familiar with Ms Fowler on a day to day basis and certainly more familiar with her than her general practitioner, Dr Gay. It is also significant that AIN Avery observed that Ms Fowler appeared her usual self throughout the rest of the afternoon following lunch.

15. [165]

    It follows from that evidence that the applicant’s contention that Exhibit D was unreliable and was not reasonably open to be acted upon by his Honour, because it failed to factor in the possibility that Ms Fowler had been injected as early as 4am, is not sustainable. It was clearly open to his Honour to conclude on the basis of the expert opinions and the lay evidence that each of the three victims, including Ms Fowler, were injected within eight hours of them displaying symptoms of significant hypoglycaemia (judgment, [105]).

16. [166]

    In a further written submission received after oral argument in the appeal, the applicant submitted that by reference to Exhibit D, if the timeframe of eight hours in relation to Ms Fowler were to extend backwards from 12 midday, there were would be five other employees of SummitCare who could have administered an injection of insulin to Ms Fowler. They were RN Blaston, AIN Agha, AIN Raylene Collins, AIN Debbie Wilson-Jones and AIN Long. The applicant submitted that those persons were present on both days and had not been excluded by the Crown’s process of elimination from being a possible perpetrator of the offences. They were persons whose shift ended at approximately 7am on Friday, 18 October 2013. The applicant submitted that the information available did not identify with any precision where those employees were working over the two days. The applicant submitted that this was a further indication of the inadequacy of Exhibit D and the problems with the arbitrary eight hour limit found by his Honour to be appropriate for the likely administration of the insulin injection.

17. [167]

    Despite the additional detail, this submission goes no further than to again challenge his Honour’s finding that the same person was responsible for all three injections and to challenge his Honour’s finding, based on the expert evidence, that the appropriate timeframe for the injection of insulin in respect of each victim was within eight hours of them developing significant hypoglycaemic symptoms. The reasons why these findings were well open to his Honour and why these further submissions take the matter no further have been set out above.

(ii) Other submissions on expert evidence

1. [168]

   The applicant’s submissions were directed to the evidence which was led at trial from Dr Song about testing that had been carried out on particular types of insulin. The applicant submitted that overall Dr Song’s evidence was of limited relevance.

2. [169]

   It is clear from his Honour’s judgment that he treated the evidence of Dr Song as of very little, if any, significance. At [91] of his judgment, his Honour said:

3. [170]

   In this part of his submissions, the applicant also sought to challenge his Honour’s observation that defence counsel at trial did not take issue in his closing address with the proposition that the injections must have occurred within a timeframe of eight hours before the display of significant hypoglycaemic symptoms.

4. [171]

   In fact the concession identified by his Honour was made by defence counsel in the following terms:

5. [172]

   The applicant further contended under this heading that the evidence at trial regarding the type of insulin which was used did not provide a sound basis for inferring that the insulin came from any of the treatment rooms at the facility. The applicant submitted that therefore his Honour’s finding that he had access to insulin as one of the pieces of circumstantial evidence, was not available on the evidence. The applicant further submitted that there was no evidence to suggest that the insulin came from any of the treatment rooms in the facility so that the fact that the applicant could access those rooms was “largely irrelevant”.

6. [173]

   The applicant’s submissions on this issue are misconceived. His Honour accepted that the exact type of insulin that was injected in each instance could not be identified. The experts could only express a general opinion about whether it was short acting insulin, long acting insulin or a combination of two. The overall effect of the expert opinions was that each of the victims had been injected with either a long acting insulin or a combination of long acting and short acting insulin. The key issue that his Honour had to be satisfied of, based on the expert evidence, was the relevant timeframe within which each of the injections occurred (judgment [105]).

7. [174]

   There was evidence that insulin of varying types was kept in a refrigerator in the treatment room in each of the wards. As a team leader, the applicant had a key to each of these rooms. No records were kept by the facility for insulin stocks and usage. It was therefore open to his Honour, even though the precise type of insulin could not be identified, to take into account as a piece of circumstantial evidence that the applicant had access to insulin and that given his possession of a key, the applicant unlike some other staff members, could access it at any time without raising suspicion (judgment [245]). This is so given that it was an integral part of the applicant’s job to obtain oral medications from the treatment room to give to residents in the ward at breakfast and at lunchtime (judgment [246]).

8. [175]

   None of the issues raised under this heading has been made out.

(iii) Conversation with Mr Kelly and the nomination of a woman

1. [176]

   The applicant submitted that the conversation by police with Mr Kelly on 22 October 2013 while he was in hospital where he purportedly nominated a “woman”, who was not a doctor or nurse, as administering the injection should have been given some (and arguably significant) weight by his Honour. The applicant submitted that this evidence gave rise to a reasonable possibility that Mr Kelly had been injected by a woman and that this should have created a real doubt about the applicant being responsible for injecting him. The applicant’s submission is that Mr Kelly’s recorded responses “were responsive to the nature of what he was asked”.

2. [177]

   Mr Kelly had been admitted to hospital on 19 October 2013 and remained there until he died on 29 October. His granddaughter, who visited him regularly from the time he entered the hospital, found that he was completely unresponsive on most days. Even when he regained some form of consciousness, she described him having difficulties responding to conversation. His granddaughter’s evidence was summarised by his Honour at [83] of the judgment.

3. [178]

   One of the police officers, who was present taking a note of the conversation, Detective Stephen, gave evidence at trial. He described Mr Kelly as not lucid because his eyes were rolling from side to side. He was not looking at the officers, he was mumbling, he began crying, he could close his eyes and appear to be asleep and then appear to come back again. Overall, Detective Stephen’s description of Mr Kelly was that he did not appear to understand where he was or what was happening (T.778-782, AB 2093-2097).

4. [179]

   The full conversation is set out at [118] hereof. As defence counsel at trial acknowledged some of the answers given by Mr Kelly were clearly not responsive. An obvious example of this is Mr Kelly’s response of “radio” to the question of whether the person had black or white skin. Similarly, his answer “I think about tid [sic] morning” to the question “Do you know the person who injected it?”. Further, Mr Kelly’s response to the initial question of who gave him the injection was “He pulled it out”. This is inconsistent with his later description of it being a woman who was responsible for the injection.

5. [180]

   It was clearly open to his Honour in the light of all of the evidence to conclude that the “conversation” did not give rise to a reasonable possibility that the person who injected Mr Kelly was not a doctor or a nurse but was a woman.

(iv) Factors said to distinguish the applicant

1. [181]

   The trial judge had regard to evidence that the applicant continued to give insulin injections to residents, even after the policy change in the facility in early 2013 which prohibited team leaders from giving such injections and required such injections to be administered by a registered nurse. Contrary to the applicant’s submissions, this evidence was not relied upon by the Crown as tendency evidence.

2. [182]

   His Honour included this fact in his judgment as the basis for one of the pieces of circumstantial evidence that there was no doubt that “the accused had training, skill and experience in the administration of insulin” (judgment [240]). Such an approach did not involve his Honour engaging in tendency type reasoning to the effect that the applicant had a tendency to inject residents when he was not authorised to do so. Rather, it was recorded as a factual finding.

3. [183]

   There was also evidence that the applicant had given residents in the Mountview ward, insulin injections that were medically required on the morning of 17 October 2013 (one resident) and the morning of 18 October 2013 (two residents). The injection of Ms Fowler occurred on 18 October 2013 while the injections of Ms Manuel and Mr Kelly happened on 19 October 2013.

4. [184]

   His Honour found that the applicant “continued to demonstrate his preparedness to inject residents with insulin right up to the time of the injections given to the three victims”. His Honour went on to specify the relevance of this circumstance and it did not involve invoking a tendency purpose. At [241] of his judgment, his Honour stated “In part, this and the previously mentioned circumstance [i.e. the applicant being skilled and experienced in the injection of insulin] mean that the [applicant] taking insulin and syringes from the treatment room on 18 or 19 October 2013 might be perceived as unremarkable”.

5. [185]

   As a piece of circumstantial evidence, it was clearly open to his Honour to make that finding and have regard to it.

6. [186]

   The applicant submitted that his Honour erred by regarding the fact of the applicant continuing to give insulin injections as something which distinguished him from other team leaders. That was because there was evidence that other team leaders had also continued to inject insulin after the policy change.

7. [187]

   The applicant’s proposition might have had some force if it were looked at in isolation. His Honour’s conclusion, however, was not so expressed. The list of 20 staff members, including the applicant, who were present at the SummitCare facility within the timeframes for the injection of each of the victims (at judgment [222]) only incorporates one other team leader from another ward (Amanda Nanstou). There was no suggestion in the evidence that she administered insulin injections after the change in policy. Other than two registered nurses, the other staff on that list were all assistants in nursing, kitchen staff and laundry staff who had never been responsible in their roles for carrying out insulin injections or distributing oral medication.

8. [188]

   If follows that there was no error in his Honour taking that evidence into account.

Items found at the home of the applicant

1. [189]

   When a search warrant was executed at the applicant’s home on 5 December 2013 a quantity of needles, syringes as well as literature concerning insulin were discovered by police. The literature included times that particular types of insulin took to achieve a hypoglycaemic effect (Exhibit AC). The documents contained references to overdosing causing hypoglycaemia. In addition, there was a recitation that severe hypoglycaemia may lead to unconsciousness and might result in temporary or permanent impairment of brain function or even death. The documentation referred to a number of types of insulin that were on hand in the treatment room of the relevant ward as at the date of the injecting of the three victims. Evidence was given by the officer in charge that this documentation was found in a black bag in the applicant’s room (T.795, AB 2110). The officer in charge also gave evidence that a number of syringes were located. Photographs of the syringes were tendered (Exhibit AD).

2. [190]

   During the course of his closing address, defence counsel at trial submitted that the insulin documentation was a readily accessible document and that you would expect that a person in the position of the applicant who was studying “prudently would have that type of material”. After this submission, his Honour asked counsel (T.835):

3. [191]

   In his judgment, his Honour observed that Mr Watson had argued that the insulin literature was readily obtainable and that it was at the accused’s home in connection with his studies in nursing. His Honour stated “In relation to that first, there is no evidence of it and secondly, Mr Watson accepted that there was no other literature found that might be relevant to such studies.” (judgment [243]).

4. [192]

   Given counsel’s initial answer of “No that’s right”, to his Honour’s question, it is understandable why his Honour viewed this as an acceptance by counsel. Even if his Honour and defence counsel were at cross purposes, the simple fact is that there was only that one reference in the interview to “medical journals”. There was no elaboration on what they were and even whether they were strictly connected with the applicant’s studies.

5. [193]

   In any event, error has not been demonstrated in his Honour’s approach to this question as set out in the judgment.

Opportunity – access to insulin and relationship with the victim

1. [194]

   The applicant’s submissions in respect of this factor overlap with some of the matters that have already been addressed. His Honour’s finding that the applicant had the “opportunity” to give the injections was based on the timeframes that his Honour had identified according to the expert evidence. The applicant again challenged this part of his Honour’s findings by reference to the possibility that Ms Fowler was injected very early in the morning before the applicant’s arrival at SummitCare. As already indicated in relation to Exhibit D, it was open to his Honour to be satisfied that the relevant timeframe for Ms Fowler was from 8am to 4pm on Saturday, 19 October. Once that finding is accepted, there was no issue that the applicant was working in the Mountview ward within the timeframes for the injection of each victim. It was therefore open to his Honour to find that the applicant had ready access to each victim so as to administer an injection of insulin while acknowledging that he was not the only one who had such access (judgment [240]).

2. [195]

   It was also not in issue that the applicant was involved in the administration of oral medications to all residents in the Mountview ward, including the three victims and also engaged in the unauthorised activity of giving insulin injections to some insulin dependent residents. This provided an adequate basis for his Honour’s finding that the applicant had the opportunity, probably more so than anyone else, to administer the injections.

3. [196]

   It is no answer to that finding by his Honour to submit (as the applicant does) that there were registered nurses on duty who would have had a greater opportunity to administer injections without coming under notice. That response does not take into account the list of 19 other staff members, who were present during the timeframes for the injection of each victim, only one of whom was a registered nurse (Stephen Zhao). Although Mr Zhao was on duty in the Mountview ward during the relevant timeframe, he gave unchallenged evidence that his responsibilities did not involve him at any time on 19 October 2013 having any reason to come in contact with either Mr Kelly or Ms Manuel. In contrast, the applicant’s statements to the police acknowledged that he regularly administered medications to Ms Fowler, Ms Manuel and Mr Kelly including on 18 and 19 October (judgment [121]). His responsibilities clearly involved him coming in contact with each of the victims during the relevant timeframes on those two days.

4. [197]

   This evidence was important and his Honour was entitled to rely upon the fact that the applicant had the opportunity to commit the offences. Put the other way, if the Crown had not been able to establish that the applicant had the opportunity to commit the three offences, then the Crown would have failed to make its case. Moreover, as has been often stated when considering a circumstantial case, all of the circumstances are to be considered and weighed (The Queen v Baden-Clay at [47]).

5. [198]

   There was no issue that the injections were administered and there was no suggestion that any of the three victims remonstrated or protested about the injection. It was therefore open to his Honour to find that in those circumstances, particularly in the case of the two more ably functioning victims, that this tended to support the notion that the injections were given by someone with whom the victims were familiar. Accordingly, the nature of the relationship which the applicant had with the victims, including as their primary supplier of medication, was a piece of circumstantial evidence that it was open to his Honour to take into account.

6. [199]

   The view of the trial judge in relation to these factors

7. [200]

   The applicant challenged his Honour’s finding in relation to the 19 other staff members who were present at all the relevant times that “there was nothing to suggest anyone of them in particular might have been responsible” (judgment, [252]).

8. [201]

   As part of the analysis leading to the acceptance of Exhibit D, it was open to his Honour to conclude on the basis of all the evidence that there were only 20 staff members who could have administered all three injections and therefore that the perpetrator must be one of those persons.

9. [202]

   Given that the Crown case was circumstantial, it was necessary for any other reasonable hypothesis to be excluded (The Queen v Baden-Clay at [46], [50]. It was therefore necessary for his Honour to assess whether or not the alternative scenario that the perpetrator was somebody else from within that group could be excluded. His Honour took that into account when he assessed the evidence of each of those persons (except for the one who was deceased).

10. [203]

    The applicant submitted that his Honour had reversed the onus of proof by treating the absence of evidence in respect of other potential perpetrators to make up for the shortfall in the evidence which could be used to inculpate the applicant. This submission fails to have regard to what his Honour actually did. His Honour was very careful about not reversing the onus of proof. He expressly stated in relation to that group of employees that he had seen give evidence:

11. [204]

    By following such an approach, his Honour was not utilising the absence of evidence to make up for a “shortfall” in the evidence which could be used by the Crown to inculpate the applicant.

12. [205]

    The applicant submitted that the only circumstance which was “peculiar” to the applicant, as distinct from the other 20 employees, was the items recovered at his home as a result of the search warrant. This submission fails to recognise that a large proportion of the 20 staff members did not work in the Mountview ward. Some of them had no particular knowledge of or contact with the three victims. Many of them had no skill or experience in injecting insulin and only team leaders and registered nurses (of whom there were only three in that group) had keys to access treatment rooms where insulin was stored. It also ignores the evidence about the text messages sent by the applicant

The text messages

1. [206]

   The applicant challenged his Honour’s finding that the text messages supported the inference that the applicant had foreknowledge of the impending or prospective demise of Ms Manuel and Mr Kelly because he knew that they had both received injections of insulin. The relevant text message exchanges are set out at paragraph [149] and [161]-[164] of his Honour’s judgment. The applicant's text at 11.27am on 19 October clearly predicted that the next resident to die was going to be “Bell or Kelly”. There was no issue that “Bell” was a reference to another resident, Ms Ethel Cliff, and Ryan was a reference to Mr Ryan Kelly.

2. [207]

   As at 11.27am, Mr Kelly had not demonstrated any symptoms of hypoglycaemia. Before being confronted with the text messages, the applicant had made a police statement asserting that on the relevant morning Mr Ryan seemed his normal self and generally fine. Aside from Mr Ryan’s medical conditions he was otherwise in reasonable health (judgment [131]). In a further statement to police, the applicant asserted that “there was nothing that [he] saw that morning that gave him any indication that Ryan was unwell” (judgment [131]).

3. [208]

   As his Honour found, even on his account, the applicant had no reason to think when he sent that text message that Mr Kelly would die. The applicant’s description of Mr Kelly’s well-being that morning was also consistent with what was described by others. It would reasonably be expected that if the applicant was going to predict someone’s death, he would nominate people who were most ill amongst the residents in the ward rather than Mr Kelly who despite his medical conditions was relatively stable.

4. [209]

   At 1.23pm on the same day, 19 October 2013, the applicant sent a text message to his colleague advising that Ms Fowler had died and that “Audrey” would be “no 3”.

5. [210]

   There was no issue that Audrey was a reference to Ms Manuel. A similar text was also sent to another colleague at 8pm nominating “Audrey” as the next that was going to die.

6. [211]

   The applicant described in statements to police, again prior to being confronted with the text messages, that he had seen Ms Fowler “take a turn” that morning at about 11.30am. He described his initial assessment to be that Ms Manuel had suffered “a TIA which is a type of small stroke”. He said that at that time it was his belief that despite being taken to hospital there was nothing that suggested to him that Ms Manuel would die. This was on the basis of his experience with other residents that had experienced TIAs.

7. [212]

   His Honour therefore found that at the time of that text (1.23pm) Ms Manuel had been taken to hospital with a condition that the applicant claimed to police that he did not regard as life-threatening. Yet in private communications with two colleagues he was suggesting that she was the next resident in the ward who was going to die.

8. [213]

   His Honour observed that it might be expected that if the applicant was going to predict someone’s death, he would nominate people who were the most ill amongst the residents of Mountview ward, not Ms Manuel whom he thought to have taken a turn which was not anticipated by him to be catastrophic.

9. [214]

   In the light of the above, the findings which his Honour made in respect of the text messages were well open to him and the applicant’s contention that such findings were not reasonably open should be dismissed.

10. [215]

    As was acknowledged in the applicant's submissions, the Crown was not required to prove motive. All that can be said is that the presence of a motive would have made the Crown case stronger. Its absence was not fatal to the Crown case, if the Crown case was otherwise made out.

11. [216]

    In relation to the asserted inadequacy of the police investigation, the circumstances in which it was carried out need to be kept in mind. The extent of and nature of the police investigation was covered in detail by the Crown in the evidence in chief of the Officer in Charge. He was not cross examined on those issues. The extent of the delay between the administration of the injections and the police being notified should also not be disregarded. The fact of the crime scene being substantially contaminated by that time was also significant.

12. [217]

    Contrary to the applicant’s submission, the impression clearly gained by his Honour was that of a long, drawn out and painstakingly detailed investigation. His Honour observed that the time and effort put into the analysis of 37 hours of footage from each of five CCTV cameras in order to identify, or attempt to identify, the 317 people who attended SummitCare, some once and some on multiple occasions, must have been considerable. It was also necessary to take statements from those persons (judgment [235]).

Conclusion

1. [218]

   His Honour’s conclusion that one person was responsible for all three offences and his reliance upon the eight hour period specified by the experts to narrow the pool of potential perpetrators who were present during all three relevant timeframes for the injections did not involve impermissible backwards or reverse reasoning. At all times, his Honour was conscious of the onus carried by the Crown. As part of that onus, it was necessary for the Crown to eliminate alternate hypotheses and persons as possible perpetrators. That did not involve reverse reasoning but rather was a legitimate method of eliminating possible alternatives to the applicant as perpetrator of these offences. After giving due consideration to the circumstantial case presented by the Crown as a whole, and not by a piecemeal approach to each particular circumstance, it was well open to his Honour to be satisfied beyond reasonable doubt as to the guilt of the applicant. Certainly, as a result of my review of the whole of the evidence at the trial, both as to its sufficiency and quality, I have not been left with a reasonable doubt as to the correctness of the verdict.

2. [219]

   The orders which I propose are:

   1. (1)

      Leave to appeal against conviction is granted.

   2. (2)

      The appeal is dismissed.

3. [220]

   HARRISON J: I have had the benefit of reading the judgment in draft of Hoeben CJ at CL as well as the additional remarks of Schmidt J. I agree with their Honours’ respective reasoning and the conclusions that they have reached.

4. [221]

   I have also undertaken the not inconsiderable task of reviewing the transcript of the proceedings below and the evidence that was before his Honour. I am satisfied that it was well open to his Honour to be satisfied beyond reasonable doubt that the applicant was guilty of the offences with which he was charged. In my view, the collocation of events that went to make up the Crown’s circumstantial case was overwhelming.

5. [222]

   More particularly, with respect to ground 2 of the appeal, I am completely satisfied that the applicant has not established that the verdicts were unreasonable or that they cannot be supported by the evidence.

6. [223]

   In precisely the same way that juries are urged and required to apply their collective wisdom and common sense to their deliberations, so too is a judge sitting alone in a criminal trial expected to do the same. The tragic and extraordinary events that gave rise to these proceedings included the unprescribed administration of insulin in either lethal or potentially lethal doses to three elderly patients in the same ward within a time frame of 48 hours. Applying one’s common sense, and without drawing any inferences or conclusions about who was or might have been responsible, the likelihood of these events occurring accidentally or by chance must be very small indeed. In the same way, the likelihood that more than one person, rather than a single individual acting alone, could have been responsible for the relevant acts must be equally small if not almost non-existent. In making that observation, I do not intend to suggest that juries and judges can draw conclusions or make decisions without reference to the particular evidence in the trial. However, by the same token, consideration of that evidence ought not to take place in a common sense vacuum or in a state of suspended reality.

7. [224]

   It is therefore unsurprising that trial counsel accepted that the acts causing death or injury in this case were performed or committed by a single perpetrator. It is equally unsurprising that his Honour felt able to come to the same view to the criminal standard of proof based upon his detailed and critical analysis of the evidence and independently of any concession about it made at trial.

8. [225]

   SCHMIDT J: I agree with the conclusions which Hoeben CJ at CL has reached in relation to each ground of appeal, having myself considered both the circumstantial case which the Crown advanced, as well as the case advanced for Mr Davis, on the evidence which I consider was correctly admitted by R A Hulme J.

9. [226]

   I also have been left with no reasonable doubt as to the correctness of the verdict which R A Hulme J reached and thus also agree with the orders which his Honour proposes.

10. [227]

    For myself I wish to add the following about the arguments advanced in relation to Ground 1, which concerns ss 98 and 101 of the Evidence Act, the coincidence evidence and coincidence reasoning.

11. [228]

    The Crown’s case against Mr Davis was circumstantial. It had to be approached in the way discussed in Shepherd at 579. The ultimate issue was whether the Crown had proven beyond reasonable doubt that it was Mr Davis who had injected each of the three victims with insulin, thereby committing each of the offences charged.

12. [229]

    The Crown had given a coincidence notice under s 98(1) of the Evidence Act which provides:

13. [230]

    Section 101 also applied to the evidence the subject of the notice, s 101(2) providing that such evidence “cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”. “Probative value” is defined in the Dictionary to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

14. [231]

    The notice provided:

15. [232]

    The Crown contended that the coincidence evidence had significant probative value, because it established similarities in how the victims came to die or be seriously injured within a two day period, as the result of the overdose of insulin with which they were injected. That evidence, the Crown contended, showed that it was improbable that the events it relied on had occurred coincidentally, as the result of the acts of different people.

16. [233]

    The Crown also relied on other circumstantial evidence to establish that the person who had injected each of the victims was Mr Davis.

17. [234]

    Contrary to what was submitted for Mr Davis on appeal, the only fact in issue at trial was not whether it was he who had administered the injections: appeal submissions at [62].

18. [235]

    Mr Davis then contended that the Crown’s case was incapable of establishing his guilt, beyond reasonable doubt. He challenged the strength of the similarities on which the Crown relied: Judgment at [195]. He also challenged the legitimacy of the theory that there was only one perpetrator, contending that there were a range of possibilities as to the perpetrator being someone other than him, which had not been excluded: at [197]. Further, that the police investigation had been inadequate and had also not excluded the possibility that an unidentified person had been the perpetrator: at [200]; [233].

19. [236]

    At trial evidence was thus led without objection about the circumstances in which two of the victims came to die and the third to be seriously injured, there being no issue that each of them had been injected with a toxic dose of insulin, which had not been prescribed. Evidence that Mr Davis was on duty on the day that each of the victims was so injected, was also admitted without objection, that being relevant to the question of whether he had the opportunity to commit all three offences. The expert evidence was directed to the timeframe within which the injections were administered, on the Crown case while Mr Davis was on duty.

20. [237]

    All of this evidence was relevant under s 55 of the Evidence Act and thus admissible under s 56, for a non-coincidence reasoning purpose, it being evidence which “if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”, s 55. The facts in issue in a criminal proceeding being “those which establish the elements of the offence”: Hughes v R at [16].

21. [238]

    The case advanced for Mr Davis on appeal was that at trial the Crown had proceeded on an erroneous construction of s 98, “by failing to identify the particular issue which was sought to be established by use of the coincidence reasoning” (appeal submissions at [60]), contrary to the approach discussed by Simpson J in Duckworth. That argument cannot be accepted given the terms of the coincidence notice, the case which the Crown advanced at trial and what Simpson J said in Duckworth at [25]:

22. [239]

    At trial there was no issue that the three events on which the Crown relied had occurred. There were unarguably similarities between those events, which in the case of two of the victims had resulted in their deaths and in the other serious injury, they having each been injected with a high dose of insulin which had not been prescribed, while a resident of the same aged care facility.

23. [240]

    There can thus be no question that the Crown was entitled to rely on the similarities between these events, which had occurred within a two day period, to advance its case that it was improbable that they had occurred coincidentally and that it was the one person who had administered all three injections, with an intent to kill or inflict grievous bodily harm.

24. [241]

    This was in dispute and its resolution depended on an assessment of the combined effect of all of the relevant similarities: R v MR at [9]-[10]; [78]-[79].

25. [242]

    To establish Mr Davis’ guilt the Crown was also was entitled to rely, as it did, on the other circumstantial evidence received at trial, to prove that it was Mr Davis who was the offender in each case, that evidence putting into context as it did, the similarities between the coincidence evidence on which the Crown relied.

26. [243]

    The other circumstantial evidence relied on included that the three victims each knew Mr Davis, because they were living in the ward where he worked; that he was responsible for the administration of their medication, when he was on duty there; that Mr Davis was on duty on the ward on the day that each victim was injected with an overdose of insulin; what the police investigation had revealed, including the information obtained as to who else had entered the facility and had access to the insulin kept there; the documents which dealt with insulin found at Mr Davis’ home; the text messages which he sent co-workers about who would be next to die; and what the expert evidence established as to the timeframe within which the injections were administered to each victim.

27. [244]

    As R A Hulme J found, much of that evidence was admissible for a non co-incidence reasoning purpose: Judgment at [194]. That explains why there was no objection to its receipt. His Honour also there noted that the case pressed for Mr Davis as to the coincidence evidence went to the strength of the Crown’s case as to the similarities it relied on, rather than to its admissibility and perhaps to whether the evidence had significant probative value. His Honour found that it did: at [196].

28. [245]

    R A Hulme J was correct. The conclusion that the probative value of the coincidence evidence significantly outweighed any prejudicial effect that it may have had on Mr Davis was inescapable, influential as it undoubtedly was in the fact finding exercise his Honour was required to undertake: IMM v The Queen at [148].

29. [246]

    Given that this was a judge alone trial, correctly, there was then no suggestion made that there would be any prejudicial effect, flowing from the receipt of the coincidence evidence. That question had to be resolved by the coincidence evidence being considered together with all of the other evidence which the Crown had adduced: DSJ v The Queen at [9].

30. [247]

    It follows that the case advanced for Mr Davis on appeal, that before R A Hulme J could deploy any coincidence reasoning, the Crown had to establish beyond reasonable doubt that he was guilty of at least one count, cannot be accepted. That is not a requirement imposed by s 98 of the Evidence Act and cannot be imported into this statutory scheme, in the way for which Mr Davis contended.

31. [248]

    Indeed, Duckworth, the case on which Mr Davis relied on appeal, was itself largely a circumstantial case: at [7]. What was there observed at [28] was that the condition which has to be met when coincidence evidence is sought to be adduced is that “that the evidence, either by itself or having regard to other evidence adduced or to be adduced by the party tendering the evidence, will have significant probative value”. What is not required is that such other evidence be either direct evidence of the alleged offender’s involvement in an offence, or where more than one offence is alleged to have been committed, that the evidence relied on establishes guilt on at least one of the counts.

32. [249]

    Further, contrary to the circumstances which arose for consideration in Gilham, on which reliance was also placed on appeal, in Mr Davis’ case R A Hulme J did consider whether the coincidence evidence relied on had significant probative value, as the Crown contended. There was no error in his Honour’s conclusion that it did.

33. [250]

    Because there was no direct evidence linking Mr Davis to any of the three offences, the case which the Crown advanced had to be a circumstantial one. As was submitted for Mr Davis, determination of whether the Crown had met the onus falling upon it to prove his guilt beyond reasonable doubt by the evidence it had adduced thus required his Honour to consider, as he did, other possible explanations for the insulin administered to the three victims, which might have been consistent with his innocence. That exercise had to be undertaken, in order to resolve whether the inferences which the Crown sought to draw from the evidence, were available.

34. [251]

    Contrary to the case Mr Davis advanced, however, his Honour’s resolution of these issues, did not involve pursuit of a process of “reverse” or “backward” reasoning, he being found guilty only because he was “the last man standing”, after other suspects were excluded. Rather, his Honour considered what was in issue, assessing the evidence on which the Crown relied and concluding for the reasons which he explained, that the coincidence evidence and that admitted for non-coincidence purposes as part of the circumstantial case which the Crown advanced, had proven beyond reasonable doubt that Mr Davis was guilty of all three offences.

35. [252]

    There was no error in his Honour’s approach.

36. [253]

    I also agree with Hoeben CJ at CL’s conclusions that his Honour did not fall into the various other errors for which Mr Davis contended and do not wish to add to the reasons which he has given for those conclusions.