Collie v Police
[2013] SASC 15
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
COLLIE v POLICE
[2013] SASC 15
Reasons for Decision of The Honourable Justice Nicholson
11 February 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - OTHER OFFENCES
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - ONUS OF PROOF
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - GENERALLY
Appeal against a decision of a magistrate finding the appellant guilty of the offence of administering a prescription drug to her four year old son, for whom the drug had not been lawfully prescribed, contrary to s18(1d) of the Controlled Substances Act 1984 (SA). The appellant asserted that the Magistrate erred in admitting various aspects of the evidence, and that the finding of guilt is unsafe and unsatisfactory and cannot be supported having regard to the evidence.
Held: appeal allowed and the conviction quashed.
Magistrates Court Act 1991 (SA) s42; Controlled Substances Act 1984 (SA) s18, referred to.
Police v Collie Magistrate’s Reasons delivered 24 October 2012; Peacock v The King [1911] HCA 66, (1911) 13 CLR 619; Barca v R [1975] HCA 42, (1975) 133 CLR 82; Plomp v The Queen [1963] HCA 44, (1963) 110 CLR 234; Thomas v The Queen [1960] HCA 2, (1960) 102 CLR 584; Rowland v Police [2001] SASC 179, (2001) 79 SASR 569; Allison v Police [2005] SASC 447; Taylor v Hayes (1990) 53 SASR 282; R v Cosford and McDonald-Smith [2007] SASC 147; Shepherd [1990] HCA 56, (1990) 170 CLR 573; Weissensteiner v R (1993) 178 CLR 217; Azzopardi v R (2001) 205 CLR 50; R v Nguyen (2010) 242 CLR 491; R v Abrahamson (1994) 63 SASR 139; Andrews v The Queen (1968) 126 CLR 198; Gerakiteys v The Queen (1938) 153 CLR 317; DPP (Nauru) v Fowler (1984) 154 CLR 627, considered.
COLLIE v POLICE
[2013] SASC 15Magistrates Appeal
NICHOLSON J.
Introduction
This is an appeal from a decision of a magistrate finding the appellant guilty of the offence of administering a prescription drug to another person for whom that drug had not been lawfully prescribed, contrary to s18(1d) of the Controlled Substances Act 1984 (SA).
As the Magistrate, in his reasons for judgment, correctly observed, “the events of 28 February 2009 were a tragedy for Sarah Collie and her family”.
At around 9.20am that day Stephen Collie, the father of Sarah Collie went to his daughter’s home. There was no response to his knock on the front door and so he used his own key to gain entry to the house. Inside he found his daughter lying on the floor of the lounge room. She was incoherent and physically incapable of standing. Mr Collie then went into the main bedroom where he found his grandson Thomas Seamus Wilson in the bed. The child was dead. There was no signs of violence or trauma and the child appeared to have died some hours earlier. Mr Collie then called 000 and ambulance officers and police officers were soon at the scene.[1]
Thomas Seamus Wilson was four years and seven months old at the time of his death. His father, who gave evidence, is called Thomas James Wilson.[2] I will refer to the child of Sarah Collie and Thomas James Wilson as Thomas and his father as Mr Wilson.
[1] Police v Collie, Magistrate’s Reasons delivered 24 October 2012 at [7].
[2] The child was also referred to on his mother’s side as Matthew Collie.
The cause of death has not been determined. However, a post-mortem examination established the presence of two types of medication in Thomas’ body; Temazepam, a sedative available only on prescription and Phenergan (Promethazine) a non-prescription antihistamine. According to the expert evidence, the levels of both drugs, as found, were within the therapeutic range for an adult. Toxicology testing showed that the child’s mother, Sarah Collie, had also ingested Temazepam and Phenergan but the former was in an amount beyond the therapeutic level for an adult. There is no doubt that Ms Collie took an overdose of Temazepam but whether this was accidental or deliberate is not a matter directly in issue in these proceedings. The Magistrate concluded that it was deliberate and his Honour used this finding as part of his reasoning in concluding that Sarah Collie administered the Temazepam to Thomas.
Sub-section 18(1d)(c) of the Controlled Substances Act 1984 (SA) provides:
A person must not administer a prescription drug (not being a drug of dependence) to another person or an animal except as follows:
(c)A person may administer to another person or an animal a prescription drug (not being a drug of dependence) if the drug has been lawfully prescribed for, or supplied to, that other person or that animal;
The components[3] of the offence with which Sarah Collie was charged are as follows:
(i)Sarah Collie administered Temazepam to Thomas;[4]
(ii)Temazepam is a prescription drug;
(iii)Temazepam had not been lawfully prescribed for Thomas; and
(iv)Temazepam had not otherwise been lawfully supplied to Thomas.
[3] Leaving aside, as unnecessary to consider, the issue of whether or not the exception in (c) provides for a defence to the offence of administration simpliciter and any issue of onus of proof with respect to the exception in (c).
[4] Phenergan is not a prescription drug and the fact that Thomas was found to have ingested Phenergan does not form part of the charged conduct.
It is common ground that Temazepam is a prescription drug, that it had not been prescribed for the use of Thomas and that it had not otherwise been lawfully supplied to him. The only issue that was in contest at trial was the question of whether or not the Crown had proved beyond reasonable doubt that Sarah Collie administered to Thomas the Temazepam found in his system. For present purposes it is sufficient, but without finally deciding, to pose the question in the form: whether or not Sarah Collie, by her deliberate act, intentionally caused or substantially contributed to the ingestion by Thomas of the Temazepam found in his system.[5]
[5] I am not aware of any direct authority discussing or defining the term "administer" for the purpose of s18(1d) of the Controlled Substances Act. According to the English Court of Appeal case, R v Gillard (1988) 87 Cr App R 189, to administer a drug does not necessarily involve the application of direct physical force. In NSW 'administer to, or causes to be administered to' requires the offender to have been in a position of authority or power over the person taking the drug. It is not sufficient that the offender supplied the drug or encouraged the other person to voluntarily consume the drug, R v Wilhelm [2010] NSWSC 334 per Howie J. According to the online Macquarie Dictionary, "administer" can mean or involve to make application of or to give.
Sarah Collie exercised her right to silence and did not answer police questions or give evidence before the Magistrate. As the Magistrate correctly observed in his reasons, no inference adverse to Sarah Collie or the case put on her behalf may be drawn from her decision to remain silent.
There was no direct evidence bearing on the issue of how Thomas came to ingest what was, more likely than not, just the one[6] tablet of Temazepam. As such, the Crown case against Sarah Collie was necessarily wholly circumstantial. It follows that a verdict of guilty cannot be returned unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”.[7] The Crown must establish not only that guilt is a rational inference from the circumstances as proved but that it is “the only rational inference that the circumstances would enable [the trier of fact] to draw”.[8]
[6] See the statement of Professor Olaf Drummer of 14 July 2009, exhibit P17.
[7] Peacock v The King [1911] HCA 66, (1911) 13 CLR 619 at [634]; Barca v R [1975] HCA 42, (1975) 133 CLR 82 at 104, [11].
[8] Plomp v The Queen [1963] HCA 44, (1963) 110 CLR 234 at 252 and see also Thomas v The Queen [1960] HCA 2, (1960) 102 CLR 584 at 605-606; Barca v R [1975] HCA 42, (1975) 133 CLR 82 at 104, [11].
Whilst a trier of fact should not engage in groundless speculation, the defence is not required to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. “If the [trier of fact] think[s] that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted.”[9]
[9] Barca v R [1975] HCA 42, (1975) 133 CLR 82 at 105, [12] per Gibbs, Stephen and Mason JJ.
A number of grounds in the notice of appeal assert an error on the part of the Magistrate. By grounds 2, 3, 4 and 11 the appellant asserts that the Magistrate erred in admitting various aspects of the evidence. Ground 11 was not pressed at the hearing of the appeal. In my view, even if all of the challenged evidence had been excluded, the Crown case, such as it was, would not have been significantly weakened. The heartland of the appeal is the first ground, that the finding of guilt is unsafe and unsatisfactory and cannot be supported having regard to the evidence. Grounds 5-10 inclusive reflect criticisms of the Magistrate’s reasoning which purport to underpin the central assertion in the first ground. In my view, given all of the evidence that was before the Magistrate (including that challenged by the appellant) and for the reasons that follow, the first ground of appeal is made out irrespective of any error that may have been made by the Magistrate. The appeal should be allowed and the conviction set aside.
The appeal lies to this court pursuant to s42 of the Magistrates Court Act 1991 (SA). The court has a duty on the hearing of such an appeal to conduct an independent review of the evidence. An appeal may be allowed even in the event that there is no overt error apparent on the face of the reasons given by the Magistrate.[10]
That is not to say that if a Magistrate gives convincing reasons, apparently free from error, this Court may be reluctant to substitute its own views. But it must do so if it comes to a different view of the case after making an independent review of the evidence.
The question on the hearing of an appeal from a Magistrate is not whether there was material upon the basis of which it was open to the Magistrate to reach the conclusion which he or she did. On the contrary, the question is whether or not, having reviewed the evidence for itself, while making due allowance for the advantage held by the Magistrate in seeing and hearing the witnesses, this Court is satisfied that the judgment under appeal is correct.[11]
[10] Rowland v Police [2001] SASC 179, (2001) 79 SASR 569 at [36]; Allison v Police [2005] SASC 447 and Taylor v Hayes (1990) 53 SASR 282 at 289-292.
[11] Rowland v Police at [37]-[38].
Brief Summary of the Evidence led by the Police
In the following sub-paragraphs I have taken advantage of the submission of the Crown in paragraph [2] of its Written Summary of Argument. What follows is a summary of evidence not the Magistrate’s findings of fact.
(i)The deceased child was the son of the appellant and her estranged partner, Thomas Wilson. The relationship between she and Wilson had been a violent one and she had taken out a restraining order against him.[12]
(ii)Prior to the 28 February 2009 the appellant had not complied with orders allowing Wilson access to the deceased. He sought orders in the Federal Magistrates Court. That court ordered access to recommence, beginning on the day of the deceased child’s death, 28 February 2009.[13]
(iii)On the morning of 28 February the appellant’s father attended her home intending to accompany her and the deceased on the access visit. He knocked on the front door and when there was no answer unlocked the front door with a key and entered. He found his daughter on the floor and apparently unable to talk. He found his grandson, the deceased, lying on a bed in another room apparently dead. He then made a telephone call for an ambulance. [14]
(iv)Ambulance officers upon attendance found upon examination of the deceased child that rigor mortis had set in and there was an extensive degree of post mortem lividity (blood pooling) evident. As a result of these observations they made no effort to resuscitate the child. [15] When police arrived at the scene it was observed that the rear door was deadlocked and the house secure with no sign of a forced entry.[16]
(v)On a coffee table in a room at the appellant’s home police took possession of an empty container which had contained a prescription drug, temazapam, along with a number of other drugs including promethazine.[17] Temazapam had been prescribed for the appellant on 12 February 2009.[18]
(vi)Upon post mortem examination, the deceased was found to have the drugs temazapam and promethazine in his system.[19] Following a blood test of the appellant upon her admission to hospital on 28 February, an analysis disclosed that she had the drugs temazapam and promethazine in her blood.[20]
(vii)The level of temazapam and promethazine in the system of the deceased child was consistent with a therapeutic dose in an adult and indicated that the deceased child was exposed to about one dose (one dose being one tablet) of each drug. Death was probably not caused by the ingestion of the drugs, but by another contributing agent, such as accidental or deliberate asphyxiation or by natural disease. Both drugs were likely to produce significant sedation and could easily have caused the deceased child to go to sleep.[21]
(viii)After the appellant was admitted to hospital at Mt Gambier a patient history was taken from her. She informed the doctor taking the history that she had a very stressful last week owing to custody issues and she had heard that she could possibly lose custody of her son. Because of that she had felt depressed and anxious.[22]
[12] Three statements of the appellant, exhibit P25; Exhibit P26; Exhibit P27.
[13] Evidence of Thomas Wilson at TS 42-43; Exhibit P30 order of Federal Magistrates Court of 25 February 2009.
[14] Evidence of S Collie, transcript at 67-73.
[15] Exhibit P3 statement of witness Adkins; Exhibit P 4, statement of witness Sparks.
[16] Buller at transcript 128-129.
[17] Witness Rickard at transcript 106; 108-109.
[18] Witness Viki at transcript 97.
[19] Toxicology report of H. Felgate of 27 April 2009 - exhibit P 16.
[20] Toxicology report of H. Felgate of 8 May 2009 - exhibit P 21.
[21] Statement of Professor Olaf Drummer of 14 July 2009 - exhibit P 17.
[22] Evidence of witness Kumbhare at transcript 141.
The Magistrate’s reasons
The Magistrate made a number of “Preliminary Findings of Fact” based on the evidence before him.[23] I set out these findings verbatim.
[23] Magistrate’s Reasons at [9].
(i)Sarah Collie had been in a relationship with Thomas Wilson since about 2004 and that relationship ended in May 2006.
(ii)There is one child of the relationship, namely Thomas Seamus Wilson.
(iii)After their separation Sarah Collie obtained a domestic violence restraining order against Thomas Wilson. Sarah Collie claimed she experienced domestic violence during the relationship and so she needed the order to ensure her personal safety.
(iv)Thomas Wilson denied the allegations of domestic violence made in the application for the restraining order but did not oppose the confirmation of the order.
(v)After the issue of the domestic violence restraining order, Sarah Collie complained to Mount Gambier Police of incidents of perceived intimidation and harassment and other breaches of the domestic violence restraining order or detailing incidents of violence or threats or unusual behaviour of Thomas Wilson before the date of the order. Sarah Collie made four statements to police (exhibits P25 to P28) but none of the statements were acted upon.
(vi)Mr Thomas made application to the Federal Magistrates Court seeking an order for access to the child Thomas Seamus Wilson and a consent order for access was made by the court on 28 October 2008 (exhibit P29).
(vii)Sarah Collie failed to comply with all of the terms of the order of 28 October 2008 and so Thomas Wilson made a further application to the Federal Magistrates Court. A consent order was made by the court on 25 February 2009 (exhibit P30).
(viii)The order of 25 February 2009 recorded a conviction on the breach of the previous order and ordered Ms Collie to permit Thomas Wilson to have contact with his son. The first access appointment ordered by the Federal Magistrates Court was for Saturday 28 February 2009 between the hours of 2.00 p.m. and 4.00 p.m.
(ix)On the morning of 28 February 2009 Simon (sic: Stephen) Collie called at his daughter’s home. He found his daughter disorientated and incoherent lying on the floor. Shortly afterwards he found his grandson in the double bed in the main bedroom. The child was dead.
(x)Ambulance officers and police were soon in attendance. Ambulance officer David Atkins observed some medication on a coffee table in the lounge room containing, inter alia, Phenergan and Temazepam. Ambulance officer Atkins handed the plastic bag containing the drugs to police constable Walter Smith. The medication which was contained in a plastic zip lock bag contained the following medications:
Temaze tablets 10 mg (25) prescribed to Sarah Collie
Pramin Metoclopramide tablets
Hyoscine Butylbromide 10mg (10), outpatient
Oxycodone 5mg (20), prescribed to Sarah Collie
Phenergan tablets 10mg (50)
Phenergan tablets 25mg
Panadol mini caps
Panadol
(xi)Sarah Collie was taken by ambulance to the Mount Gambier Hospital.
(xii)Toxicology results in relation to Thomas Seamus Wilson detected .20 milligrams of Temazepam per litre and .6 milligrams of Promethazine per litre in his blood. In the liver was .06 milligrams of Temazepam per kilogram and in the stomach 40 milligrams of Temazepam and 60 milligrams of Promethazine per kilogram. Temazepam was present in segments of his hair. The concentrations were within the therapeutic range.
(xiii)Pursuant to a direction issued by the Deputy State Coroner, Detective Brevet Sergeant Davis seized blood and urine samples taken from Sarah Collie at the Mount Gambier Hospital.
(xiv)Analysis of the samples taken from Sarah Collie identified Temazepam and Promethazine in her body. The concentration of Temazepam was considerably above the therapeutic range and the concentration of Promethazine was within the therapeutic range.
(xv)A post mortem examination of Thomas Seamus Wilson was conducted by Dr Karen Heath. Her report of the results of the post mortem declared the cause of death as undetermined.
(xvi)At Mount Gambier Hospital Sarah Collie was interviewed by Dr Kumbhare. The doctor’s notes contained the following entry:
‘Patient went to Nelson last night along with her? ex partner. Patient has had a very stressful last week – had ? custody issues (custody of her son) with her ex partner. Felt that she was going to lose custody of her son so took some Temazepam tablets (not sure about the number of tablets) along with some Phenergan tablets (approximately five or six tablets) took a couple of panadols for headache. Patient denied the use of any illicit drug. Patient not sure who rang ambulance … patient not willing to talk about deceased son.’
(xvii)Sarah Collie was interviewed by Detective Brevet Sergeant Davis on 8 February 2010. Ms Collie stated she did not wish to speak to police and did not answer questions.
The Magistrate then summarised both the prosecution and defence submissions concerning what inference or inferences should or should not be drawn from the primary facts found. The prosecution submitted that the defendant, Sarah Collie, was the only person who could have administered the Temazepam and that the only conceivable alternative, that Thomas had taken the Temazepam himself without any involvement of his mother, was not, given all of the circumstances, a plausible explanation. The Magistrate’s summary of the Crown’s ultimate submission was in the following terms.
Prosecution says [the alternative scenario] is not plausible and more than likely Ms Collie administered the medications to her son and when she found her son was dead she took an overdose herself.[24]
[24] Magistrate’s Reasons at [14] (emphasis supplied).
It is to be noted that the prosecution’s submission, in these terms, is not consistent with the requirement that the Crown is to prove its case beyond reasonable doubt.
The Magistrate proceeded to explain his reasons for accepting the Crown’s submission under the heading in his judgment “Analysis”. His Honour observed by way of reminder to himself that the prosecution must prove Ms Collie’s guilt beyond reasonable doubt, that she came to court with a presumption of innocence which presumption she retained throughout the trial and that he was not to draw any adverse inference from her election to rest on her right to silence.
His Honour noted that there were no signs of forced entry to the house and that Mr Stephen Collie needed to use his key to gain entry through the front door. His Honour then observed:
It is unlikely therefore that anyone other than the defendant and the child were present at Ms Collie’s house on the night of 27/28 February 2009. If that is so, it is safe to assume the child was given the medication by his mother or he took it himself.[25]
The Magistrate, with respect, has not articulated the correct standard of proof here. If, on the evidence as a whole, it was a reasonable possibility that a third person, at some time prior to 6.20am that morning, was at the house and administered the Temazepam[26] the appellant would be entitled to an acquittal on this ground alone. However, the Magistrate appears to have excluded this possibility on the basis that it was “unlikely… that anyone other than the defendant and the child were present” from which his Honour found it was “safe to assume the child was given the medication by his mother or he took it himself”.
[25] Magistrate’s Reasons at [18].
[26] See Barca at 105, [12] per Gibbs, Stephen and Mason JJ.
The Magistrate went on to consider these as the only two possible alternatives. His Honour recognised that it was possible that the child took a Temazepam tablet himself, as was suggested by the defence, and dealt with this possibility in the following terms.
It is true children sometimes place fine objects in their mouths, but that is not universally so. Thomas Seamus Wilson was not an infant requiring constant supervision against such a risk. He was four years old and there is no evidence he had ever ingested anything he should not have. This is a convenient explanation for the presence of Temazepam in a child’s body but it is not necessarily a convincing explanation. It does not explain for example how the exact same drugs were consumed by the child and Ms Collie or why the concentrations in the child’s body were at therapeutic levels only. If the child did take the Temazepam in the way suggested by [the defence] it is also possible he may have taken more than just one.
There may be legitimate reasons why the child may have been given the Phenergan but the ingestion of the same medication by the defendant makes this less likely. In my view this is more than coincidence.[27]
In my view, the Magistrate’s use of language here was not always consistent with either the onus or standard of proof resting on the Crown.
[27] Magistrate’s Reasons at [19]-[20] (emphasis supplied).
The defence argued that there were a number of reasonable possibilities open on the evidence all of which involved Thomas taking a Temazepam tablet without any involvement of Sarah Collie. However, after recounting other aspects of the evidence, the Magistrate focused on the so called “coincidence” that Sarah Collie took the same two drugs, Temazepam and Phenergan, as did Thomas. This appears to have been a very influential feature of his Honour’s reasoning which was to the following effect:[28]
[28] Magistrate’s Reasons [21].
(i)The overdose taken by Sarah Collie was “unlikely to be a result of a mistake”;
(ii)Sarah Collie was a devoted mother and it was not plausible that she would subject her child to the trauma of finding her dead body nor that she would abandon her son into the care of the father whom she feared;
(iii)“I do not believe” she intended to end both her life and that of her son;
(iv)Rather “I think” she overdosed when she discovered that her son had died;
(v)This is consistent with the scene which the father found when he entered the house;
(vi)“This suggests” the child was the first to take the Temazepam;
(vii)“If the child took the Temazepam and the Phenergan himself then I question how the defendant came to take the exact same medication herself”;
(viii)“If the child took the medications himself the defendant would have been unaware of what he swallowed”;
(ix)“But somehow the defendant took the exact same medicines”;
(x)“That is a most unlikely coincidence… not consistent with Ms Collie’s innocence; and in conclusion
(xi)“I think the prosecution version is accurate”.
I raise a number of concerns with this process of reasoning. First, in my view, the Magistrate has, again, slipped into a use of language, albeit only in the process of articulating his reasoning process towards the ultimate conclusion, that is inconsistent with the requirement that the prosecution must prove its case beyond reasonable doubt.
Second, it is unclear which, if any, of his Honour’s intermediate conclusions to this point were arrived at “beyond reasonable doubt”. A potentially important example is the finding “this suggests the child was the first to take the Temazepam”. I recognise that the final inference of guilt in a circumstantial case does not necessarily have to be based on primary facts all of which must be arrived at beyond reasonable doubt.[29] However, a finding of this nature, in the manner as expressed, necessarily masks other possibilities. The question unanswered here is whether it remained a reasonable possibility in the Magistrate’s thinking that the child was not the first to take the Temazepam. If so, what effect might such a reasonable possibility have had on the Magistrate’s overall reasoning, given the importance in the reasoning process of the “finding” that Thomas was the first?
[29] See, for example, R v Cosford and McDonald-Smith [2007] SASC 147 at [25] and [27] where White J (with whom Duggan and Gray JJ agreed) observed:
While each element of an offence must be proved beyond reasonable doubt, it is clear enough that in a circumstantial case it is not every fact relied upon to prove each element which must itself also be proved beyond reasonable doubt. It is only those facts which constitute indispensable intermediate steps in the reasoning towards an inference of guilt which must be so proved.
.. . .
Shepherd [1990] HCA 56; (1990) 170 CLR 573, established that in a circumstantial case a fact, not being an element of the offence charged or of a defence to be negated, need not be established beyond reasonable doubt unless it is, in a strictly logical sense, an indispensible link in the chain of sequential reasoning leading to a finding of guilt.
Third, there are aspects of the reasoning summarised above that, on my review of the evidence, border on speculation, such as, for example: that Sarah Collie intended to end her life by taking an overdose; that she did so when (that is, because) she discovered her son had died; and that the child was the first to take the Temazepam.
There is a fourth concern; the “unlikely coincidence” of Thomas taking the Temazepam and Phenergan himself and Sarah Collie thereafter taking the same two medications herself. This finding of an unacceptable coincidence masks an assumption which, in my view, was not supported by the evidence. Whilst the accused has only been charged with administering a prescribed drug, that is, the Temazepam, the Crown submission (which the Magistrate appeared to accept) was to the effect that the defence case was contra indicated by the fact of Thomas having ingested not just a Temazepam tablet but also the Phenergan. One of a number of possibilities that needed to have been assessed was that Sarah Collie did indeed give Thomas a Phenergan tablet (not an offence) and that it was only the Temazepam that Thomas self-administered. If this were to be seen as a reasonable possibility, upon a consideration of the whole of the evidence, the Crown case theory, as adopted by the Magistrate in his reasoning, would disappear.
Having expressed a preference for the prosecution version, the Magistrate went on to make the following findings which he expressed to have been reached beyond reasonable doubt.[30]
(i)That Sarah Collie was anxious about the pending access visit;
(ii)That Sarah Collie and Thomas Wilson were the only persons in Ms Collie’s house on the evening of 27 February 2009 and the morning of 28 February 2009;
(iii)That the ingestion of the same drugs by Thomas Wilson and Sarah Collie was not a coincidence;
(iv)That Thomas Wilson did not administer the Temazepam to himself; and
(v)That Sarah Collie administered the Temazepam to her son.
On this basis, the Magistrate found the charge proved.
[30] Magistrate’s Reasons at [22].
Review of the evidence on appeal
The direction typically given to juries in this State identifies a two stage approach for deciding a wholly circumstantial evidence case. The first step is to identify those facts, relied on by the prosecution, that have been established by the evidence. The second step is for the trier of fact to determine what inference or inferences they are willing to draw from those facts.
I have reviewed all of the evidence tendered and adduced before the Magistrate. I am satisfied that his Honour’s “Preliminary Findings of Fact” were open on the evidence to a trier of fact acting reasonably, apart from an aspect of that set out in sub-paragraph [12](x) above.[31]
[31] As far as sub-paragraph (xvi) is concerned, strictly the Magistrate should have made a finding based on the evidence given by Dr Kumbhare after his memory had been refreshed by reference to the notes.
In sub-paragraph (x), the Magistrate appears to have concluded that the zip lock sandwich bag seen by ambulance officer David Adkins and given by him to constable Walter-Smith (now Rickard) contained all of the medications seen on the coffee table, including the packets of Phenergan and the empty Temazepam container.
To my mind, of significance (and perhaps of most significance) to any reasoning process which might lead to the guilt of the accused was the state of the medication and its containers, as found in Sarah Collie’s house when first observed by the police and ambulance officers who attended on the morning of 28 February 2009. The evidence does not support a finding that the empty Temazepam container was found within the zip lock sandwich bag together with the other medications. To the extent that the Magistrate made and relied on such a finding, he was in error.
The evidence of most of the persons who attended the scene that morning, in this respect, lacked certainty. With hindsight, this is quite understandable. Those who attended that morning were concerned about two matters. The first was that a child had inexplicably died. The second was that Sarah Collie appeared to have taken a drug overdose. It is tolerably clear that the intention of those who first attended was simply to gather up such medication as was found in the house so that it could be taken to the hospital with Sarah Collie in order to assist the doctors in their diagnosis and treatment of Sarah Collie. The potential relevance, to any criminal investigation, of the precise location and state of the container that had held the Temazepam would not have been apparent at that time.
The best evidence on the topic is that of Stephanie Walter-Smith which supports a finding contrary to that of the Magistrate. She first observed the Temazepam container to be on the coffee table apart from and outside the zip lock sandwich bag. The direct[32] evidence on the topic can be summarised as follows.
Evidence of Stephen Collie
[32] Various other witnesses gave evidence of what they were told or came to understand.
The appellant’s father arrived first and called 000. He noticed that there were some containers on the coffee table in front of the sofa. However, he could not recall what state they were in when he saw them.
David Adkins
David Adkins is a paramedic and he arrived with the first ambulance team at about 9.29am. He told the court that he inspected the medications that were on the coffee table in the lounge room and noted Phenergan and Temazepam. He said the Temazepam bottle was empty. However, he was not able to give any detail about the physical location of the medication and, in particular, the Temazepam bottle.
Glen Sparks
Glen Sparks was a paramedic and the partner of David Adkins. He also observed medication on a coffee table which consisted of “a bottle of Temazepam” and “a bottle of Phenergan”.[33] Mr Sparks could not recall if the lids were on the bottles or not.
Stephanie Walter-Smith
[33] It is common ground that the Phenergan in the house was not contained in a bottle but in a packet.
Senior constable Walter-Smith was the first of the police officers to arrive. She attended at about 9.30am but after the first ambulance crew. As she was leaving the lounge room to accompany Sarah Collie in the ambulance to the hospital, she saw a plastic sandwich bag on a coffee table. The sandwich bag was full of boxes and medication. Next to the sandwich bag was an empty bottle of Temazepam. Senior constable Walter-Smith could not recall whether the bag was sealed or open or if the top was on or off the medication bottle. However, all of the medications, but for the Temazepam bottle, were in the plastic bag. An ambulance officer gave her the sandwich bag and the bottle. She was not aware whether or not the sandwich bag had been touched before it was handed to her. She took the items with her in the ambulance to the hospital.
It is at least a reasonable possibility, and in my view quite likely, that the Temazepam container was outside and apart from the zip lock plastic bag at the time Mr Stephen Collie arrived. It is also common ground[34] that the Temazepam container[35] was sealed with an ordinary screw lid or cap; not the type of cap commonly known as a childproof cap. Further, the evidence does not permit a finding to be made as to whether at the time Mr Collie arrived the cap of the Temazepam container was on or off the container. There is no evidence bearing on these issues relevant to any time before Mr Collie arrived. It must remain as a reasonable possibility that the Temazepam container was outside the zip lock bag at all material times.
[34] Raised with both counsel during the submissions on appeal.
[35] Exhibit P12.
As such, there is much to the defence submission that the presence in the zip lock bag and the ingestion by Thomas of Phenergan should be regarded as a red-herring. There may have been something to the “coincidence” analysis if, in fact, both the Temazepam and Phenergan were contained in the zip lock bag. It would be difficult to accept as a reasonable possibility that Thomas gained access to the zip lock bag, consumed some Phenergan and Temazepam but none of the considerable number of other drugs in the bag, returned the Phenergan and Temazepam to the zip lock bag and that Sarah Collie did the same, both acting independently.
However, having found it to be a reasonable possibility (in my view, quite likely) that the Temazepam bottle was separately located with or without its cap on (such a cap being readily removable by a child of the age of 4 years 7 months, in any event), this becomes the starting point for further analysis. There is now the possibility that Sarah Collie, for a legitimate (at least in her mind) reason, gave a tablet of Phenergan to her son (not an offence) and returned the Phenergan to the zip lock packet of medication and, independently of that, Thomas of his own volition took advantage of the relatively easy access to the container on the coffee table and swallowed a Temazepam tablet. There is any number of circumstances in which this might have occurred, for example:
(i)Sarah Collie might have been asleep or in another room of the house and unable to observe her son pick up the Temazepam container and take a tablet.
(ii)Sarah Collie may have been observed by Thomas to take tablets from the Temazepam container[36] and when she was not looking or not in the vicinity decided to copy her and take one as well.
(iii)Sarah Collie may, in taking her overdose, have dropped a tablet or left a tablet behind which Thomas found.
[36] There is nothing in the evidence from which it might be inferred that Sarah Collie took all of her overdose of Temazepam at one time. It is conceivable that she took an initial “therapeutic” dose but for some reason decided to take more later on.
There are other conceivable scenarios. It would be speculation to hazard a guess at what actually happened. The point to be made is simply that various circumstances can be envisaged during which Thomas might have had access to a Temazepam tablet with or without his mother’s knowledge but without active administration by his mother. The relatively ready availability of the Temazepam container (with its non childproof cap) and the age of Thomas (4 years 7 months) alone provides a sufficient evidentiary foundation to render self administration a reasonable possibility.[37]
[37] The appellant relied also on the evidence of Dr Oswell Viki (the appellant’s general practitioner) that accidental ingestion by children of small objects was relatively common. There was also evidence from Stephen Collie that Thomas was inquisitive and collected small objects.
I return to the formulation of Gibbs, Stephen and Mason JJ in Barca v R.[38]
Although a [trier of fact] cannot be asked to be engage in groundless speculation it is not incumbent on the defence to either establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the [trier of fact] think[s] that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted.
[38] At 105, [12] (emphasis supplied).
On the whole of the evidence it was at least a reasonable possibility that Thomas ingested a Temazepam tablet of his own accord and without the active involvement of his mother.
The fact that Sarah Collie may have had a “motive” to sedate her child because either she or Thomas or both were anxious and under stress as a result of the impending access visit, as the Crown contended (and recognising that Thomas had been diagnosed with high functioning autism) does not to my mind particularly strengthen the Crown case. It might suggest that it was more likely that Sarah Collie administered the Temazepam but it does not prevent the possibility that Thomas took the Temazepam tablet himself from being characterised as a reasonable possibility, in all of the circumstances.
Sarah Collie’s refusal to give evidence
The Crown argued at the appeal, and for the first time, that the appellant was in an exclusive position to know the true facts and to give evidence in support of any hypotheses consistent with innocence but failed to do so. As such, the fact finder might more readily reject any hypothesis consistent with innocence. The Crown relied on Weissensteiner v R[39] and Azzopardi v R.[40] It is not necessary in this matter to explore the outer reaches of the circumstances in which a Weissensteiner type comment might be available in a criminal trial. The High Court has made it plain that the circumstances in which such a comment will be justified are rare and exceptional.
There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused’s failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence.[41]
[39] (1993) 178 CLR 217.
[40] (2001) 205 CLR 50.
[41] Azzopardi v R (2001) 205 CLR 50 at [64], Gaudron, Gummow, Kirby and Hayne JJ.
There are at least three reasons why, in my view, the failure of Sarah Collie to give evidence is not to be regarded as a circumstance which bears on the probative value of the evidence adduced by the Crown or which may be taken into account for the purpose of evaluating that evidence.
First, Sarah Collie was in a very bad physical and mental state at the time her father arrived and by inference for some period of time before. She had taken an overdose of Temazepam. On arrival, her father, who was first on the scene, observed his daughter to be lying on the floor of the lounge room in distress. Sarah Collie was unable to get up and unable to talk although she made noises. At one stage Mr Collie saw his daughter dragging herself, hanging onto the sofa. Constable Walter-Smith also tried to converse with Sarah Collie but “could get absolutely nothing out of her that made sense”. She was unable to walk herself and had to be carried to a chair. Ambulance paramedic David Adkins observed Sarah Collie to be incoherent, unsteady on her feet with a glazed uncomprehending look about her.[42] The toxicology report showed Sarah Collie to have been suffering from an overdose of Temazepam together with non-toxic quantities of Oxazepam and Phenergan (Promethazine). Dr Oswell Viki told the court that Sarah Collie had been in Glenside (psychiatric) hospital for about four weeks after the incident. He said that in his experience it was common for a person’s memory to “be blacked out” following a traumatic event such as the unexpected death of a child. He agreed during cross-examination that excessive ingestion by an adult of drugs like Temazepam also might affect a person’s memory.
[42] Similar observations were made by Glen Sparks (paramedic) and Alicia Marcus (student paramedic).
In these circumstances, the issue of fairness to the accused, should a Weissensteiner type approach be adopted, is raised. Furthermore, the reliability of any evidence, had it been given, necessarily would have been compromised. As such, and in the context of a circumstantial evidence case that (in my view) ought not be described as compelling, it can be seen that the risk of presenting with a confused recollection and perhaps poor demeanour would have weighed heavily in the decision, no doubt reached in consultation with her legal advisors, not to give evidence.
The second consideration is that if Sarah Collie were innocent and Thomas had taken the tablet himself while she was asleep, herself in a drugged state, or simply in another room, she would only be able to give evidence denying her involvement and to the effect that she did not know how the incident occurred. There would be no facts available from Sarah Collie’s evidence additional to those already in evidence. Sarah Collie can only be regarded as being able to give evidence of additional facts, not within the knowledge of anyone else on the assumption that she was guilty or, at least, that she observed Thomas take the tablet himself. The former is the ultimate question to be determined and is not to be assumed as part of the process of proof. The latter, if Sarah Collie were innocent, may or may not be true and cannot be assumed.
The third consideration arises from a passage in the joint judgment of Mason CJ, Deane and Dawson JJ in Weissensteiner[43] itself.
Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused’s knowledge. Even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.
I have already touched upon this matter when discussing my first and second considerations. I do take the view that the deficiencies in the Crown case are such as to be sufficient, in all of the circumstances, to account for the accused remaining silent. I am not satisfied that her failure to give evidence is “clearly capable” of assisting the trier of fact in evaluating the Crown evidence and case.
[43] (1993) 178 CLR 217 at 228.
Grounds 2, 3 and 4
Given that I am satisfied that the conviction is not supported by the evidence and is unsafe and unsatisfactory, it will be sufficient to deal only briefly with the appellant’s objections to some of the evidence admitted. As far as grounds of appeal 2, 3 and 4 are concerned, I accept the prosecution submissions. The impugned evidence was admissible as being relevant to the nature of the relationship, past and existing, between Sarah Collie and her ex-partner, Mr Wilson, the father of Thomas. This was relevant background evidence from which inferences might be available to a trier of fact as to Sarah Collie’s state of mind and possible levels of stress and anxiety being experienced by both Sarah Collie and Thomas, as at the time of the incident. The fact that this background evidence might also bring with it some potentially prejudicial effects over and above any probative value was not a reason why the Magistrate, sitting alone, should have excluded it.[44]
[44] R v Abrahamson (1994) 63 SASR 139.
In any event, as earlier indicated, the evidence that Sarah Collie was under stress and anxious about an impending contact visit, said by the Crown to provide a “motive” or reason for calming Thomas with a tablet of Temazepam (and a tablet of Phenergan) borders on speculation and, in my view, added only marginally to the Crown case.
Conclusion
I have identified errors in the Magistrate’s reasoning process. Ordinarily, this would be sufficient to quash the conviction and direct a retrial. However, after having considered all of the evidence afresh I have also reached the view that it cannot support a conviction and that the conviction must be seen as unsafe and unsatisfactory. I have done so after bearing in mind the approach to be taken by an appellate court when addressing a submission that a verdict was unsafe and unsatisfactory. The required approach was reaffirmed by Hayne, Crennan, Kiefel and Bell JJ in R v Nguyen.[45]
The task of an appellate court in considering whether a verdict of guilty returned by a jury “should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence” was described by this Court in M. As four members of the Court pointed out in M, the conclusion that a verdict should be set aside on this basis is often expressed in terms of the verdict being “unsafe or unsatisfactory”, “unjust or unsafe” or “dangerous or unsafe”. The question for the appellate court is one of fact.
“[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”
As the plurality in M went on to point out:
“But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
[45] (2010) 242 CLR 491 at [33] (citations omitted).
In these circumstances the proper disposition of the appeal, as counsel for the Crown conceded, is to set aside the conviction and enter an acquittal.[46] I so order. I will hear the parties on the need for any other consequential orders.
[46] See, for example, Andrews v The Queen (1968) 126 CLR 198; Gerakiteys v The Queen (1938) 153 CLR 317; and DPP (Nauru) v Fowler (1984) 154 CLR 627.
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