Crickitt v R

1. [1]

   THE COURT: Brian Kenneth Crickitt applies for leave to appeal against his conviction for the murder of his wife, Christine Crickitt, at Woodbine on or about 1 January 2010.

2. [2]

   The applicant was found guilty on 8 December 2016 following a judge-alone trial before Hoeben CJ at CL: R v Crickitt [2016] NSWSC 1738. On 5 May 2017 his Honour imposed a sentence of imprisonment for 27 years with a non-parole period of 20 years and 3 months: R v Crickitt (No 2) [2017] NSWSC 542.

3. [3]

   Leave is sought to appeal against conviction on the following grounds:

4. [4]

   Leave to appeal is required in respect of both grounds pursuant to s 5(1)(b) of the Criminal Appeal Act as neither involves a question of law alone.

Overview

1. [5]

   The applicant and the deceased were married in 1991. At the time of her death the deceased was living with the applicant in a house at Woodbine, a suburb of Campbelltown. They were aged in their mid-late 50s. The applicant was a general medical practitioner and he worked at the Campbelltown Medical and Dental Centre (CMDC). There was some disharmony in the marriage. In addition, the applicant was involved in an affair with Ms Linda Livermore.

2. [6]

   At some point during the night of New Year's Eve 2009 the applicant left home and went to Ms Livermore. He returned home the next morning and at 8.45am rang the emergency services number and reported, "I've just come home and found my wife on the floor. She's dead".

3. [7]

   An autopsy examination was carried out but a cause of death could not be determined. A coronial inquest was held in 2011. On 3 December 2014 the applicant was arrested and charged with murder.

4. [8]

   The Crown contended that the applicant caused the death of the deceased by administering an injection of insulin. The Crown Prosecutor put the case in his opening address as follows:

5. [9]

   The Crown Prosecutor made it clear in the course of his opening address that there was no direct evidence that the cause of death was hypoglycaemia as a result of an injection of insulin but that the Crown relied upon a body of circumstantial evidence to prove that this was so.

6. [10]

   Senior Counsel for the applicant commenced his opening address by stating that "the central fact in issue in this case is the cause of death of the deceased". He explained:

Principles applying to a ground of appeal that a verdict of guilty is unreasonable or not supported by the evidence

1. [11]

   Ground 1 invokes the first limb of s 6(1) of the Criminal Appeal Act:

2. [12]

   The principles as to how an appellate court is to consider and determine such a ground, including in the case of an appeal from a judge-alone trial, include the following propositions:

The issue for determination by this Court

1. [13]

   The prosecution case was an entirely circumstantial one and it had eight elements. The defence response was either to dispute them or to argue that they were of no significance. In this Court, however, the issue for determination was much more narrowly confined. It was accepted that it was open to the judge to find that the applicant had acquired and administered insulin to the deceased. The sole issue was that in a case where a particular cause of death is alleged (as here), unless there is direct evidence establishing such a cause of death the Crown will have failed to prove that an act of the accused caused the death of the deceased. The argument was expressed in the written submissions (at [177]) as follows:

2. [14]

   The applicant's contention was perhaps expressed more clearly in oral argument; for example:

3. [15]

   It was common ground at the trial that in addition to the elements of the offence of murder that the Crown was required to prove beyond reasonable doubt, there was a further indispensable fact that required proof to that standard: Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56. That was that the applicant had on the afternoon of 31 December 2009 improperly obtained a supply of insulin. The applicant accepted in this Court that the trial judge was entitled to be satisfied of this fact beyond reasonable doubt. He also accepted that there was evidence from which the judge could draw the inference that he injected his wife with insulin. As a result, the sole matter in issue in this Court was whether it was open to the judge to be satisfied beyond reasonable doubt that it was the injection of insulin that caused death.

4. [16]

   It will be necessary to determine this limited (but obviously fundamental) issue by looking at the nature and strength of the Crown's circumstantial case. Given a contention in the applicant's submissions that there was evidence suggesting a lesser or no likelihood of death resulting from an insulin overdose, it will be necessary also to examine that aspect of the medical evidence.

The circumstantial evidence case

1. [17]

   The eight major components of the Crown's circumstantial evidence case were each the subject of findings by the trial judge. None of the findings were challenged in this Court.

2. [18]

   The Crown contended that there was an "emotional motive" and a "financial motive" for the applicant to murder his wife.

3. [19]

   There was evidence of the applicant speaking in quite disparaging terms about his wife and being quite enamoured with Ms Linda Livermore. For example, in his first police interview, which occurred less than a few hours after his wife had died, he said of her, "she's pretty volatile. She's alienated all her friends, except for a couple. … the children, her son scarcely talks to her. His wife won't talk to her at all. [S]he argues with her mother all the time. … she's just really negative, can be very cutting … just insulting all the time."

4. [20]

   By way of contrast, on the evening of 1 January 2010 in his second interview the applicant told police how his relationship with Ms Livermore had developed over the past six weeks; he had taken to visiting her at night when his wife was asleep; there was a sexual element to the relationship; and they had spoken of having a future together.

5. [21]

   The trial judge agreed with the defence contention that financial gain was, at best, a minor motive. However, he was satisfied that a combination of increasing dislike for the deceased and his infatuation with Ms Livermore provided not only an "adequate motive" but the "primary motive" for the applicant to murder the deceased.

6. [22]

   At 8.32pm and 8.34pm on 30 December 2009 the applicant's computer was used to make a Google search for the words "insulin overdose" and then to access a webpage titled "Critical Care – Intentional overdose with insulin: prognostic factors and toxicokinetic / toxicodynamic profiles". There was an indication that one of the results of the "insulin overdose" search had been visited by the user earlier the same day at 1.31am. The user was identified as the applicant. The website the subject of that search result was "diabetes.emedtv.com". It contained a page with information about insulin overdoses, including that "an overdose with a short- or rapid-acting insulin is typically more dangerous than an overdose with an intermediate- or long-acting insulin".

7. [23]

   The trial judge said that when one took into account the date when these searches were made, together with the evidence relating to the issuing of the NovoRapid prescription for Ms Kristina Mitchell on 31 December 2009 (see below), the internet searches fitted neatly into the Crown case. He noted that the defence did not challenge the proposition that it was the applicant who carried out the searches.

8. [24]

   His Honour was satisfied that the Crown had established that the only rational explanation for these internet searches was that the applicant was seeking to obtain information to further his plan to murder his wife by an injection of insulin.

9. [25]

   This circumstance is the indispensable fact that the Crown was required to prove beyond reasonable doubt (see above at [15]).

10. [26]

    Ms Kristina Mitchell had been one of the applicant's patients for about five years. She suffered from diabetes and used two different types of insulin: the fast-acting NovoRapid FlexPen which she took during the day and the slow-acting Lantus SoloStar which she took at night.

11. [27]

    Ms Mitchell attended the CMDC on 31 December 2009 and saw the applicant at 3.12pm. She was given prescriptions for Lantus SoloStar and three other medications. She had them filled at the Priceline pharmacy at Macarthur Square shopping centre later that afternoon. She identified her signature on the prescriptions in the "Patient's or agent's signature" field (Exhibit U).

12. [28]

    Ms Mitchell was shown a prescription in her name also dated 31 December 2009 for NovoRapid FlexPen which other evidence established had been issued by the applicant at 5.01pm and filled at the CMDC pharmacy that evening (Exhibit V). She denied that she had signed it. It was accepted that the applicant had. Nevertheless, it was contended that there was a reasonable possibility that the prescription had been "accidentally signed and it might nonetheless have been filled and the medication provided to Mrs Mitchell".

13. [29]

    The trial judge concluded (at [219] and [346]):

14. [30]

    A technical expert, Mr Rainier Deang, gave evidence about the MedTech32 software in use at the CMDC. Audit recording by the software indicated that a record of the prescription of NovoRapid FlexPen in the name of the patient Kristina Mitchell was created at 5.01pm on 31 December 2009 by the applicant. The record was "inactivated" (deactivated) at the same time which Mr Deang explained had the effect of hiding the prescription from the general patient medical history. This was something that would be done if, for example, the doctor changed his/her mind and decided not to issue the prescription to the patient. The word "wrong" had been inserted as the reason for the inactivation. One minute later, the applicant had reactivated the record of the prescription and then deactivated again, this time with the reason given as "not needed".

15. [31]

    Rather than the defence suggestion that the activation and deactivations were inadvertent, the trial judge considered a rational explanation for there being two deactivations was that the applicant, on reflection, thought that "wrong" was likely to give rise to questions so he replaced it with the more complete explanation, "not needed". He found that the applicant was motivated by a consciousness of guilt in wanting to conceal the creation and ultimate filling of the prescription for NovoRapid FlexPen.

16. [32]

    An inquest into the death of the deceased proceeded on 16 May to 19 May 2011 and then recommenced on 5 December and concluded on 8 December 2011. In the intervening period, on 12 October 2011 a subpoena was served at the instigation of the Coroner's office on the CMDC for the production of certain records of the practice including those relating to Kristina Mitchell.

17. [33]

    At the time the subpoena was served the record of the NovoRapid FlexPen prescription issued at 5.01pm on 31 December 2009 in the name of Kristina Mitchell remained deactivated and so the records that were produced to the Coroner pursuant to the subpoena did not include anything in relation to it (Exhibit AE). The applicant reactivated the record on 24 November 2011.

18. [34]

    The judge concluded that at some time between 12 October and 24 November 2011 the applicant became aware that a subpoena had been served. The question of insulin being involved in the deceased's death had arisen in the coronial inquest by this time. The applicant was motivated to alter the records again so that it did not appear that he was attempting to conceal the fact that the prescription had been issued. His Honour said that this would only have been a concern to the applicant if he had deliberately sought to conceal the fact of the issuing of the prescription on 31 December 2009. This further confirmed the inference of a consciousness of guilt.

19. [35]

    It was common ground that the applicant at first lied to police on 1 January 2010 about his whereabouts when he left the house during the preceding night. He spoke of having gone for a drive and sleeping in his car but he accepted in his second interview on the night of 1 January 2010 that these were lies; he had in fact gone to the home of his lover, Ms Livermore. The judge inferred that these were lies told out of a consciousness of guilt.

20. [36]

    The trial judge was also satisfied that consciousness of guilt was the reason for lies told by the applicant to his new wife that were covertly recorded in October-November 2014 (Exhibits BQ-BS). He had told her that evidence of him making inquiries concerning insulin overdoses on his computer and about him having reactivated the insulin prescription on 24 November 2011 was the product of police fabrication.

21. [37]

    Dr Rebecca Irvine was the forensic pathologist who carried out an autopsy on 2 January 2010. Her first report dated 6 January 2010 included that the "disease or condition directly leading to death" was "undetermined". (Professor Johan Duflou, another forensic pathologist, agreed.) She issued an amended report dated 23 February 2011 in which she added two things but did not change her opinion that the cause of death could not be determined. Under a heading "Addendum" (on p 4) she wrote:

22. [38]

    The judge reviewed in detail the evidence of Dr Irvine and Professor Duflou. It included Dr Irvine saying that at the time of the autopsy she did not "appreciate the significance of this bruise and the red mark within it, that it might be an injection site." It only occurred to her when it was drawn to her attention by two police officers in December 2010. Professor Duflou agreed: "it is possible it may be a needle puncture mark" although he agreed in cross-examination that it could be an abrasion. Dr Irvine accepted in cross-examination that she had referred at the inquest to it also possibly being "an artefact of the body being moved or post-mortem change or something which doesn't represent something of relevance".

23. [39]

    The judge concluded:

24. [40]

    As indicated previously, Dr Irvine recorded that the direct cause of death was "Undetermined". She found no obvious external traumatic cause of death; nor did she observe any acute cause of death or significant underlying disease during an internal examination. She said in cross-examination that she had performed at least 4000 autopsies since 1995 and supervised probably as many.

25. [41]

    Professor Duflou, as previously noted, agreed with Dr Irvine's opinion that the cause of death was "undetermined".

26. [42]

    Professor Duflou said that as a general forensic pathologist, undetermined causes of death occur in around about 5% of cases. He added that "around about that rate you are not over-diagnosing and you are not under-diagnosing causes of death". Dr Irvine thought "it's probably close to between 2 and 5%".

27. [43]

    It was uncontroversial at the trial that the cause of death was undetermined. As to whether insulin administration was the cause of death, the judge concluded:

Other possible causes of death

1. [44]

   Related to the last of those eight elements was the fact that only two other possible causes of death were considered at the trial: suicide and positional asphyxiation.

2. [45]

   Suicide was not pursued as a reasonable possibility by the defence; indeed, senior counsel for the applicant specifically disavowed it. Nevertheless it was something the Crown accepted it was required to negate beyond reasonable doubt.

3. [46]

   How the deceased could have taken her life without leaving any indication of how she did so is difficult to understand. In any event, the trial judge was satisfied that "while it is possible that the deceased took her own life, it is most unlikely". That was a finding that was well open to be made upon the basis of evidence that the deceased was talking recently with family members and a friend in positive terms about future plans and activities.

4. [47]

   "Positional asphyxiation" was described by Dr Irvine as "an inability to breathe effectively, based on the position of the body itself" such as where a severely intoxicated person falls and ends up in a position where their head is tucked in tightly to their chest and their head is underneath them.

5. [48]

   The body of the deceased was found by police to be lying beside the bed with the head facing down but wedged so that the right cheek was pressed against the side of the bedside chest of drawers. In her report, Dr Irvine described it as an "unusual" and "awkward position" but she did not think there appeared to be a component of positional asphyxia. In her oral evidence she said, "It's unlikely that this represents a positional asphyxia". In her evidence at the inquest she described it as "very unlikely". At the conclusion of her evidence, after being cross-examined about the possible influence of a concussion or the sedative effect of drugs that were found in the deceased's system, Dr Irvine maintained that positional asphyxiation was "very unlikely" but "possible".

6. [49]

   Professor Duflou said in his report that it would "be possible, but in my view relatively unlikely for a person to have suffered positional asphyxia in that position". He immediately proceeded to write about a number of possibilities that could qualify this view. In his oral evidence he agreed that when there is positional asphyxia, petechiae in the eyes is commonly seen but they were not in this case. He agreed that petechial haemorrhages over the surface of the lungs and the heart may be seen but they were not in this case. He ultimately agreed positional asphyxiation, whilst possible, was "not the obvious cause of death that I would consider at the time".

7. [50]

   Professor Olaf Drummer, a Victorian forensic pharmacologist and toxicologist (see below at [55]), said that he would not expect that the drugs in the deceased's system could potentially cause her to become so incapacitated that she would be unable to move her head in order to breathe.

8. [51]

   Professor Dimitri Gerostamoulos, Chief Toxicologist and Manager – Toxicology, Victorian Institute of Forensic Medicine, provided a report of 12 May 2011 (Exhibit AR) which was solely directed to the effect of lorazepam (trade name Ativan) being found within the deceased's system. The toxicological test results indicated to him that a low dose had been administered or taken. He was unable to say anything about the relative pharmacological effect in terms of whether the deceased would have been able to move her head in order to breathe. There were unknown factors such as when the drug was consumed and how much. It was a sedative drug which would have an additive effect with other sedative drugs. Alcohol may also tend to increase the effects of a combination of the medications detected.

9. [52]

   Professor Duflou was recalled for further cross-examination at the end of the trial. He was shown some photographs of the deceased's body and from the colouring of the face he said positional asphyxia was "still very much worth considering as a reasonable possibility". He was referred to one particular photograph and he said:

10. [53]

    The Crown Prosecutor was granted leave to question the doctor pursuant to s 38 of the Evidence Act 1995 (NSW). Professor Duflou agreed that it was very likely that the photographs he had been shown were ones he had seen before he wrote in his report that positional asphyxiation was "relatively unlikely". He was reminded of the evidence he had given six days earlier ("not the obvious cause of death that I would consider at the time") and said he was still of that view, adding "positional asphyxia would be lower down the list".

11. [54]

    The trial judge said he had some reservations about the evidence of Professor Duflou given on the second occasion he was called. He had changed his position in two respects from that set out in his report and in his earlier evidence. The change was apparently triggered by being shown some photographs – but they were photographs that he had seen previously. For this reason and in respect of this issue the judge preferred the evidence of Dr Irvine. This included acceptance of Dr Irvine's analysis of the photographs that the deceased was not in a position in which her capacity to breathe had been seriously compromised. The judge concluded that positional asphyxiation was "a very unlikely cause of death but remained a possible cause".

12. [55]

    That analysis by the trial judge was confined to the evidence that directly related to the issue at hand. When later in his judgment he announced the findings that he made when having regard to the circumstances as a whole (rather than individually) he said that he was satisfied beyond reasonable doubt that positional asphyxiation was not a possible cause of death. Counsel for the applicant expressly conceded at the hearing in this Court that his Honour was entitled to come to that view.

Evidence as to insulin causing death

1. [56]

   There was nothing at the time of the autopsy suggesting that insulin had been injected. If there had been, Dr Irvine said she might have subjected the bruise and red mark on the left buttock, which she recorded and photographed, to a biopsy for further investigation in order to determine if there was a track due to an injection. The absence of any suspicion of insulin involvement also explains why no step was taken to have a sample of blood appropriately treated so that it could be tested for insulin. This is not something that is routinely done.

2. [57]

   There was evidence from a number of highly qualified experts on the subject of whether an administration of insulin may have caused the death.

3. [58]

   Professor Olaf Drummer was asked to review the autopsy and toxicological test results within the realm of his expertise. He provided a report dated 21 March 2011 (Exhibit AQ).

4. [59]

   Professor Drummer was not troubled by any of the medications found within the deceased's system as they were within therapeutic levels. (In his oral evidence this opinion extended to another medication, lorazepam.) He said that a number of drugs are available to general medical practitioners that have the potential to be fatal and would cause rapid unconsciousness and death within a few hours. They included morphine and perhaps some opiates, muscle relaxants and insulin. He noted that morphine and muscle relaxants had been excluded but he said it would be useful for there to be testing for some of the potent opioids. He also noted that insulin testing was requested but analysis was not possible at the New South Wales Division of Analytical Laboratories.

5. [60]

   Professor Drummer said that insulin when given in excess (particularly to a non-diabetic) can "rapidly" cause low to pathologically low glucose concentrations leading to coma and death. Insulin could be readily measured in serum and the demonstration of insulin in tissue around an injection site often confirms the diagnosis (of an overdose).

6. [61]

   When asked to clarify his opinion concerning an overdose of insulin and the use of the word "rapidly", he spoke of a number of variables. He said that if a fast-acting insulin such as NovoRapid was given at a certain dosage level intramuscularly in the buttocks to a person who was not a diabetic, a coma could result within an hour. He agreed in cross-examination that intramuscular injection takes less time for the insulin to take effect compared to subcutaneous injection.

7. [62]

   Professor Drummer said that when a person has been dead for a day or two it makes it very difficult for any laboratory to detect insulin using standard procedures, as distinct from measuring insulin levels during life.

8. [63]

   Professor John Carter is the Clinical Professor of Medicine at the University of Sydney and is a specialist endocrinologist and diabetologist. He provided a report dated 12 December 2014 (Exhibit AS).

9. [64]

   Professor Carter's report provided information as to what insulin is and its function in the human body. He described the condition of hypoglycaemia and its effects.

10. [65]

    Short (or fast) acting insulin analogues such as NovoRapid commence to take effect following subcutaneous injection after 10-30 minutes and remain active for 3 to 5 hours, with peak activity at 30 minutes to 3 hours. Intramuscular injection provides for quicker absorption. The speed of absorption varies individually because of factors such as being overweight or obese. (The deceased had a BMI of 37.4 kg/sq m, well above the threshold for obesity.)

11. [66]

    Professor Carter explained that an overdose of insulin on its own will not directly cause damage but the resultant low blood glucose levels may do so. He wrote:

12. [67]

    Professor Carter concluded his report with the opinion that "it is possible given all the circumstances of the matter that Christine Crickitt could have died from an overdose of insulin". When asked about this at the trial he said, "I cannot say one way or the other".

13. [68]

    In his oral evidence, Professor Carter opined that insulin could be detected in blood taken even three days after death, although he also said that the prospects of correlating the finding with insulin levels at the time of death diminished over that period (within 24 hours very good; 24 to 48 hours not as good; 3 days, if a very low level is detected, would provide no help on the level at the time of death).

14. [69]

    Emeritus Professor Vincent Marks, University of Surrey, Guildford, provided a report dated 29 November 2011 (Exhibit BD). He is a world-renowned expert in relation to insulin and glucose metabolism in relation to diabetes and hypoglycaemia.

15. [70]

    Professor Marks concluded:

16. [71]

    In the body of his report he said that while it cannot be excluded that there was an administration of insulin there was also "nothing to suggest that insulin was involved and some minimal evidence to suggest that it was not". He explained in a telephone conference, subsequently confirmed in writing by email (Exhibit BF), that the "minimal evidence" he was referring to was an account emanating from the applicant to the effect that the deceased had taken less than 6 hours to die. He said he would have expected her to stay alive for longer than that period of time after an injection of insulin.

17. [72]

    As a post-script to his report he wrote:

18. [73]

    In his email exchange (Exhibit BF), Professor Marks said that by the final paragraph of that extract he was again referring to his understanding of the timeframe of death of the deceased and nothing more. He was asked whether now that he had been provided with additional information about the timeframe surrounding the death (the applicant came home around 8.00pm and the body was found 12 hours later), he was no longer of the view that it was less likely that insulin was involved. He said:

19. [74]

    A statement by a forensic scientist (Exhibit AZ) advised that blood samples from the autopsy were kept in a refrigerator at the Division of Analytical Laboratories (later, the Forensic and Analytical Science Service). The samples were stored within a temperature range of two to eight degrees with an average of four degrees. They were never frozen and thawed.

20. [75]

    Two samples of blood, one preserved and one unpreserved, were flown to Germany for further testing. The police officer in charge of the case gave evidence that (contrary to the method of storage at the laboratory) they were frozen in order to transport them.

21. [76]

    These samples were tested and a report was provided by Professor Mario Thevis, dated 24 October 2011. The analyses were negative for any insulin derivative. Because even human insulin was not detected, it was concluded:

22. [77]

    Professor Thevis' laboratory had forewarned that there was a high probability of detection if the blood sampling was within a relatively short period after death, preferably less than 12-24 hours but if there was a longer delay the chances of detecting insulins would be significantly reduced. Here there was a delay of in excess of 24 hours.

23. [78]

    It was contended in the applicant's written submissions (at [185]) that, "the most cogent evidence from which an inference that insulin played no part in the death of the deceased came from Dr Thevis [who] … reported that 2 samples of the deceased blood, despite rigorous testing, was negative for the presence of any form of insulin". Clearly, this submission did not accurately portray the evidence as set out above.

The judge's reasoning as to insulin causing death

1. [79]

   The judge dealt with as a discrete topic the issue as to insulin administration being the cause of death. He quoted at length from the evidence of Professor Drummer, Professor Carter and Professor Marks. He referred to the Crown's submission that on the state of the evidence the position was "implacably neutral" that insulin administration leading to fatal hypoglycaemia could not be excluded but there was no evidence on clinical grounds that it was involved.

2. [80]

   As to the defence case, his Honour noted a submission that no physical evidence was found to support the Crown case (no syringes or used Flex Pens were found on searching the applicant's house and bins). He recorded in considerable detail a submission that the timing of events was inconsistent with the Crown case; for example, that the evidence supported the proposition that any hypoglycaemic coma would be unlikely until the late hours of the night of 31 December 2009 and that having regard to observations of the state of the deceased's body the next day (rigor mortis, lividity) it was inconsistent with the evidence of Professor Marks and therefore unlikely that death from hypoglycaemia could have occurred so rapidly. His Honour also referred to Professor Duflou having said in a 2011 report for the coronial inquest and in his evidence that estimates of a time of death were "almost impossible" when there has not been a knowledgeable person present at the time death occurred.

3. [81]

   The judge concluded that the defence submission on this issue of the timing being inconsistent with death having been caused by insulin administration was "of limited force". There was no evidence of the amount of insulin that had been injected, if that had occurred, and the amount was "of considerable importance". There was on the evidence an enormous variation in the reaction of individuals to insulin and so the experts (Professors Marks and Carter) were very careful to express their opinions in terms of generality and even then with high qualification.

4. [82]

   The judge summarised:

5. [83]

   It followed that the judge was required to determine whether the Crown had proved beyond reasonable doubt that the death of the deceased had been caused by the applicant having administered insulin solely on the basis of inference. He encapsulated his satisfaction to that standard in the following:

6. [84]

   This process of reasoning was well open to the trial judge. Having regard to the findings of fact, particularly those listed in [350], it was not fatal to the prosecution that there was no direct evidence that death occurred as a result of the administration of insulin. The applicant did not refer to any authority that mandated there should have been direct evidence. In this case it was well open to the trial judge to infer from the facts that he found that the applicant deliberately and intentionally caused the death of the deceased by administering insulin to her.

7. [85]

   There will be a grant of leave to appeal but Ground 1 must be rejected.

Ground 2 – failure to warn or direct as to the applicant's loss of forensic opportunity

1. [86]

   Section 133 of the Criminal Procedure Act provides:

2. [87]

   It was therefore necessary for the judge to include in his judgment the principles of law that he applied. It was also necessary for him to take into account any warning that would normally be given to a jury.

3. [88]

   After closing addresses had concluded there was an exchange between bench and bar as to the directions the judge should give to himself in the course of which senior counsel for the applicant said:

4. [89]

   Reference was made by senior counsel for the applicant to Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 in support of his submission.

5. [90]

   The trial judge said:

6. [91]

   The Crown Prosecutor opposed the giving of the direction, characterising the issue as simply "a gap in the Crown case" and agreeing with his Honour's suggestion that it was "a fact [the Crown] have got to live with".

7. [92]

   The judge concluded:

8. [93]

   The judge did not refer to the issue, in terms of giving himself a direction, in the course of his lengthy reasons.

9. [94]

   In the applicant's written submissions in this Court it was asserted that the applicant had lost a forensic opportunity because of the inadequate forensic testing of the deceased's blood for the presence of insulin. In the context of the Crown case being that the applicant had killed his wife by an overdose of insulin the judge should have warned himself that "such a finding may be unreliable" for two reasons; first, because the state of medical evidence was equivocal ("speculative") as to the involvement of insulin in the death; and secondly, because the lost forensic opportunity went directly to the question whether insulin administration caused the death.

10. [95]

    Nothing more was said about Mahmood v The State of Western Australia in written or oral submissions. That may have been because reliance upon it at trial was inapt; it was concerned (in ground two – see the plurality at [20]-[29]) with whether an inference on a specific topic could be drawn where there was an absence of direct evidence and there were competing hypotheses inconsistent with the hypothesis for which the prosecution contended. The present was a purely circumstantial evidence case with a core element of there being an absence of direct evidence that the deceased did or did not die as a result of the administration of insulin.

11. [96]

    Contrary to the submission of senior counsel for the applicant at trial, this was not a case in which there was an "absence of evidence capable of proving the Crown's case". Contrary to the applicant's written submissions, it was not the case that a finding that insulin administration caused the death of the deceased "may be unreliable" because it was not capable of proof by direct evidence. The issue for the trial judge was whether the elements of the Crown's circumstantial case were capable of proving the offence beyond reasonable doubt. There was no occasion for the judge to give himself a "warning".

12. [97]

    Ground 2 must be rejected.

Orders

1. [98]

   The following orders are made: