SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
DENT v THE KING
[2024] SASCA 12
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Nicholson)
22 February 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - MOTIVE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
The appellant was found guilty by judge alone of murdering the deceased through administering an assortment of drugs, including opioids and prescription medication.
The appellant appeals her conviction on the grounds that the primary Judge erred in her factual findings, and that it was not reasonably open for her to be satisfied beyond reasonable doubt, when having regard to all of the evidence, that the appellant administered the combination of drugs that caused the death of the deceased with the requisite intent.
Held, per Livesey P, Lovell JA and Nicholson AJA, dismissing the appeal:
1.There was no error in the factual findings the primary Judge made.
2.It was open to the primary Judge to be satisfied beyond reasonable doubt that the appellant was guilty of murder.
3.The assessment of the evidence does not cause a reasonable doubt about the guilt of the appellant.
Criminal Appeal Act 1912 (NSW) s 6(1); Criminal Procedure Act 1921 (SA) ss 158(1)(a); 158(1)(b); 158(c), referred to.
Bristow v The Queen (2020) 137 SASR 449; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Dansie v The Queen (2022) 274 CLR 651; De Gruchy v The Queen (2002) 211 CLR 85; Filippou v The Queen [2013] NSWCCA 92; Filippou v The Queen (2015) 256 CLR 47; Jones v Harris [1946] SASR 98; Lang v The Queen (2023) 97 ALJR 758; Lukaj v The King (2022) 142 SASR 98; M v The Queen (1994) 181 CLR 487; Martin v Osborne (1936) 55 CLR 367; MFA v The Queen (2002) 213 CLR 606; R v Ball [1911] AC 47; R v Georgiev (2001) 119 A Crim R 363; Shepherd v The Queen (1990) 170 CLR 573; SKA v The Queen (2011) 243 CLR 400, considered.
DENT v THE KING
[2024] SASCA 12Court of Appeal – Criminal: Livesey P, Lovell JA and Nicholson AJA
LIVESEY P AND LOVELL JA: Mr David Lawrence (“the deceased”) was found dead in his bed on the morning of 3 December 2015. An autopsy determined that the cause of death was the toxic effect of opiates, namely, morphine and tramadol. Ms Wendie-Sue Dent (“the appellant”), who was in a relationship with the deceased and lived with him in his house at the time of his death, legitimately had access to large quantities of both morphine and tramadol. The Director of Public Prosecutions (SA) alleged that the appellant administered the fatal doses of drugs. She was charged with his murder. The appellant elected for a trial by a judge sitting without a jury.
The primary Judge found the appellant guilty of murder. The appellant appeals the conviction submitting that the verdict of the primary Judge was unreasonable and cannot be supported having regard to the evidence.
For the reasons that follow the appeal should be dismissed.
Overview
The prosecution alleged that the appellant had the means, the opportunity, and the motive to murder the deceased. The prosecution alleged that the appellant had access to copious quantities of drugs legally prescribed to her for treatment of a chronic pain condition from which she administered to the deceased fatal doses of morphine and tramadol.
The appellant, during interviews with the police, denied administering any of the medication that directly caused his death. The prosecution alleged that not only did the appellant have the means to kill the deceased, but that she created the opportunity to do so by isolating the deceased from his friends and family. The prosecution also alleged that the appellant had a financial motive to murder the deceased.
The appellant argued that the evidence was incapable of excluding reasonable hypotheses consistent with the appellant’s innocence, namely, that the deceased either committed suicide or accidentally took too much pain relief medication by himself or in conjunction with the appellant. The appellant further submitted that even if the prosecution proved that she administered the drugs, it could not establish that she did so with the requisite intent for murder, rather, it would remain a reasonable possibility that she did so in a misguided attempt to relieve his pain.
Prosecution case
On the morning of 3 December 2015 at 6:07 am, the appellant called emergency services and reported that she had just discovered the deceased dead in their bed. Ambulance and police officers attended the scene. Brevet Sergeant Norris, who at that time was attached to the South Coast Crime Scene Investigation Department, took numerous photographs of the scene and collected swabs from various items for later testing. Initially, the police considered the investigation to be a coronial matter.
On attending the premises, the police located on the bedside table next to the deceased, a tumbler in which there was a small amount of brightly coloured liquid. Brevet Sergeant Norris took a series of photographs of the tumbler. He described the liquid as orange in colour and said that it “smelt fruity” like “pineapple”; he thought it was juice or cordial. Brevet Sergeant Norris took a sample of the liquid but did not seize the tumbler. The photographs show that the tumbler contained approximately 1 cm, or perhaps a little more, of orange/yellow coloured liquid.
The prosecution alleged that the appellant administered a fatal combination of her prescription medication to the deceased in the day or days preceding his death, either in a single dose or in multiple doses.
Dr Langlois, a forensic pathologist, conducted the post-mortem during which he took from the deceased a sample of blood. The blood sample was sent for analysis. An undisputed analysis of the blood sample revealed the following quantities of drugs in the deceased’s blood at the time of his death:
·0.98 mg per L of morphine;
·0.52 mg per L of codeine;
·approximately 2 mg per L of tramadol;
·approximately 0.25 mg per L of O-desmethyltramadol (a metabolite of tramadol);
·0.12 mg per L of 7-aminonitrazepam (a metabolite of nitrazepam);
·approximately 30 mg per L of paracetamol;
·approximately 20 mg per L of naproxen;
·approximately 0.04 mg per L of diazepam; and
·approximately 0.03 mg per L of nordiazepam.
Having conducted the post-mortem and received the toxicology results, Dr Langlois determined the cause of death to be the toxic effect of opiates (namely morphine, codeine, and tramadol). The appellant had been legitimately prescribed each of those drugs for a chronic pain condition. The drugs had been dispensed to her in large quantities in the months preceding the deceased’s death. Analysis of the orange/yellow liquid found in the tumbler showed trace quantities of all active drugs detected in the deceased’s blood, including tramadol, morphine, codeine, diazepam, paracetamol, and naproxen.
The prosecution tendered a “medication chart” prepared by Detective Brevet Sergeant Tucker. It was agreed that this chart accurately reflected the date, quantity, and nature of the medications dispensed to the appellant from 1 January 2015 to 2 December 2015. It was accepted that the following medications were unaccounted for:
·112 tablets of 100 mg morphine;
·300 tablets of 50 mg tramadol;
·122 tablets of 200 mg tramadol;
·364 tablets of 5 mg Antenex (diazepam/Valium); and
·199 tablets of 5 mg Alodorm (nitrazepam).
The calculations of the missing tablets were predicated upon the assumption that the appellant took the tablets in accordance with the prescribed dosages. It does not allow for tablets that may have been taken by someone else nor by the appellant misusing her medication by taking more tablets than prescribed.
Professor White, a pharmacologist, gave evidence that the level of morphine detected in the deceased’s blood was potentially lethal. To reach this level, the deceased would have had to ingested 20 slow release 100 mg morphine tablets. If the tablets were crushed, thus destroying the slow-release coating, as few as 10 tablets may have been sufficient to achieve that level. The level of tramadol was also a potentially lethal dose and would require the deceased to have ingested approximately three and a half to four 200 mg tablets. The prosecution relied upon inferences that could be drawn from the startlingly high quantity of tablets that had to have been ingested and the effect the drugs would have had on the deceased. Professor White’s evidence is discussed in detail later in these reasons.
During a search of the deceased’s house on 3 December 2015, the police located empty medication packages of morphine and tramadol in the outside bin; other empty medication containers, including an empty bottle of Antenex (Valium), were also found. An empty blister pack of tramadol was located on the kitchen work top. A striped bag containing medication was also located in the kitchen.[1] Located within this bag was a packet of 28 morphine 100 mg tablets (16 present and 12 missing), two full packages of tramadol with 28 tablets in each, and other medication including Antenex (Valium).
[1] Described as a cooler bag or make up bag.
The morphine blister pack located in the striped bag was swabbed and the swab analysed for the presence of DNA. The same process was adopted for the bottle containing Valium located in the striped bag and the bottle located in the outside bin. The deceased was excluded as having contributed to the DNA extracted from the morphine blister pack and the bottle found in the striped bag, and there was slight support that he was not a contributor to the DNA extracted from the bottle located in the outside bin.
The prosecution relied on the presence of the discarded packaging and lack of the deceased’s DNA as circumstantial evidence in support of a conclusion that the deceased had not self-administered the drugs.
Given the level of drugs in his system, the prosecution contended that it was not a reasonable possibility that the deceased either deliberately or accidentally administered a fatal combination of drugs to himself.
To support the allegation that the appellant deliberately administered the drugs to the deceased, the prosecution alleged that the appellant isolated the deceased in the days leading up to his death by telling his friends and family not to telephone or visit him because he was suffering from back pain and needed bed rest.
The prosecution alleged that between 30 November 2015 and 3 December 2015, the deceased did not answer any telephone calls made to his mobile telephone, nor did he respond to any text messages. This was unusual for him as he was known to be responsive to contact from friends and family, and his birthday was on 1 December. There was also a text message from a school friend about the death of his father to which the deceased did not respond. He also failed to attend a planned birthday dinner without explanation. The appellant was interviewed by police in Dapto, New South Wales, on 17 February 2017.[2] In the record of interview, the appellant admitted to having taken the deceased’s mobile telephone from him so that he would not be disturbed. The appellant stated that the deceased was in great pain from a back injury, which reaching for his mobile telephone would exacerbate.
[2] Exhibit P58; Exhibit P58a.
The prosecution accepted that the deceased was experiencing a level of back pain in late November 2015, but on the prosecution case there was no medical basis for him to be confined to bed. Indeed, the prosecution alleged the medical advice was to the contrary. The prosecution alleged there was no need for the appellant to have been isolated. The deceased was isolated, the prosecution alleged, to give the appellant the opportunity to administer the fatal dose or fatal doses of drugs and commit the offence of murder.
Apart from having the opportunity, the prosecution alleged that the appellant had a financial motive to murder the deceased. In 2014, the appellant was named as the beneficiary of the deceased’s superannuation fund, which as of 24 November 2015, held a balance of approximately $175,000. She was also the executor and main beneficiary of the deceased’s “handmade will” prepared by the appellant’s sister, Ms Dianne Dent, and signed on 25 September 2015 (approximately nine weeks before the deceased’s death). Under the will, the appellant stood to inherit the deceased’s house which was unencumbered. As of December 2015, the house was valued at approximately $235,000.
While there was no suggestion that the will was a forgery, the prosecution alleged there was evidence that the appellant was concerned the deceased had been revisiting his will. The appellant raised the topic of the deceased’s will with Mr Kym Lawrence, the deceased’s brother, on 29 November 2015. A computer seized from the home of Ms Dianne Dent in February 2017 contained an electronic document in almost identical terms to the signed will. Evidence established that it was last accessed and modified on 1 December 2015, shortly before the deceased’s death.
The prosecution relied on evidence that the deceased had spent a large amount of money on the purchase of a motorhome for use by himself and the appellant, and that he expected her to repay her share of the purchase price after she received the settlement proceeds of her personal injury claim. The deceased also spent money on a used car for the appellant, lent money to her brother, and paid some of her legal fees relating to her personal injury claim. There was evidence that the deceased expected the appellant to repay at least some of that money.
As well as having a financial motive, the prosecution also relied on evidence that suggested the deceased’s relationship with the appellant had begun to deteriorate in the months leading up to his death. The prosecution did not suggest the evidence of the decline in the relationship was particularly significant.
The prosecution also relied on the conduct of the appellant on 3 December 2015. The appellant gave a number of inconsistent accounts of her movements that morning, before she rang triple zero. At 5:15 am, a time when the appellant may have been aware that the deceased was dead, she telephoned the National Australia Bank telephone banking number. The line was open for 49 seconds. The appellant did not telephone triple zero for an ambulance until 6:07 am. Her delay in contacting triple zero and her telephone call to her bank, was alleged to be inconsistent with the deceased having died in circumstances which were unexpected by the appellant.
At trial the prosecution also alleged that the appellant told many lies in the days and months following the deceased’s death as to the circumstances in which she found him and her understanding as to the cause of his death. For example, the appellant had told others that the deceased had died of a tumour, asbestosis, and diverticulitis. The prosecution submitted that the appellant told deliberate lies out of a consciousness of guilt to lay a false trail to direct suspicion away from her, or, to provide a plausible explanation for the circumstances in which he died. The primary Judge accepted that the appellant did tell some lies while rejecting some of the prosecution’s submissions on other alleged lies. Importantly, the primary Judge rejected the prosecution’s submission that some of the lies were told out of a “consciousness of guilt”.
The primary Judge, in relation to the appellant’s statements about how she came to find the deceased dead in bed, found they were confused and inconsistent but not “deliberate lies”. The primary Judge rejected the prosecution’s submission that they were lies told out of a “consciousness of guilt”.
In relation to “exculpatory statements” made by the appellant, the primary Judge found they were “jumbled and inconsistent with each other”. The primary Judge determined she would not place any weight on the statements and put them aside “as if the statements had never been made”.
There was no challenge on appeal to the primary Judge’s approach on the issue of the suggested lies or to her approach to the assessment of the appellant’s statements and her later record of interview.
During the record of interview on 17 February 2017, previously referred to, the appellant denied the offence. The appellant did admit that she had given the deceased some Valium.
Circumstantial evidence
As some of the appellant’s submissions involved the analysis of circumstantial evidence, it is necessary to set out the well-known and basic principles.
Circumstantial evidence is evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred.
The force of circumstantial evidence lies in the combined strength of items of evidence pointing in the same direction. That is, whilst none of the many pieces of evidence by themselves may be determinative of an issue, their convergence becomes increasingly persuasive. To put that another way, the strength of circumstantial evidence lies in its ability to show that “according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed”.[3]
[3] Martin v Osborne (1936) 55 CLR 367, 375 (Dixon J, Latham CJ agreeing).
Often the circumstances constituting circumstantial evidence can be supplemented by direct evidence but that is not necessary.[4] The facts that go to make up a circumstantial case, unless they are an indispensable intermediate step in the reasoning process towards an inference of guilt, are not required to be proved beyond reasonable doubt. It is the elements of the offence that must be established beyond a reasonable doubt.
[4] Lukaj v The King (2022) 142 SASR 98 at [59]; Jones v Harris [1946] SASR 98, 104-105; see also Cross on Evidence (9th edition, 2013) [1105].
As Dawson J observed in Shepherd v The Queen:[5]
… the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.
[5] (1990) 170 CLR 573, 579-580 (Toohey and Gaudron JJ agreeing).
In a case relying on circumstantial evidence, to be satisfied beyond reasonable doubt of the guilt of an accused, it is necessary not only that guilt should be a rational inference, but that it should be the only rational inference that the circumstances permit.
However, to be reasonable, an inference must rest upon something more than mere conjecture. It is necessary to weigh and consider the totality of the evidence and, in doing so, the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence.
A circumstantial case is not to be considered piecemeal. Often in a circumstantial case there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. However, it is of critical importance to remember that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
As Gibbs CJ and Mason J stated in Chamberlain v The Queen (No 2):[6]
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider “the weight which is to be given to the united force of all the circumstances put together”.(citations omitted)
[6] (1984) 153 CLR 521, 535.
While a circumstantial case is not to be considered piecemeal, it is important to bear in mind, both at trial and on appeal, any inferences, explanations, and submissions put forward by an accused in relation to individual items of circumstantial evidence. To put that another way, resolution of the case depends upon assessment of all the evidence and that includes, of course, not just inferences in favour of the prosecution but inferences, explanations, and submissions put forward on behalf of the accused.
Grounds of appeal
The appellant appeals on the following grounds:
1. The verdict should be set aside on the grounds that it is unreasonable or cannot be supported having regard to the evidence.
Particulars
1.1 It was not reasonably open for the Learned Trial Judge (‘LTJ’) to be satisfied beyond reasonable doubt of guilt having regard to the inadequacy/insufficiency of evidence to establish beyond reasonable doubt that the [appellant] administered the combination of drugs causing the death of the deceased.
1.1.1The LTJ has erroneously made findings of fact attributing the cause of death to the actions of the [appellant] when, on all of the evidence, it could not be excluded as a reasonable possibility that alternative hypotheses exist, namely, accident or self-administration.
1.1.2 The LTJ has excluded as a reasonable possibility that the deceased intentionally administered drugs himself for pain relief, or that the [appellant] separately administered the drugs for pain relief. In doing so, the LTJ has had insufficient regard to the evidence supporting that the deceased was experiencing back pain in the days prior to his death and was seeking medical attention and drugs to alleviate that pain.
1.2 The LTJ erred in finding that the prosecution established a sufficient motive to enable an inference to be drawn that the [appellant] formed an intention to kill the deceased.
1.2.1 The lack of evidence of disharmony in the relationship between the [appellant] and the deceased prior to the death was not acknowledged.
1.2.2 Post-death behaviours of the [appellant] in the midst of a dispute over the deceased's estate cannot in the circumstances constitute motive.
1.3 The LTJ has erred in excluding the possibility of an altruistic intent for the administration of the drugs, as demonstrated in the evidence of the [appellant's] ready innocent provision of large quantities of her potentially fatal medication to other persons previous to the death of the deceased.
2. The LTJ has erred by failing to bring to bear, direct herself, or otherwise to consider at all the effect of the [appellant’s] intoxication upon her capacity to form the requisite specific intent to kill (or otherwise to have regard to the [appellant’s] intoxication when considering any competing hypothesis consistent with innocence).
Particulars
2.1 The LTJ has failed to have regard to the evidence of Professor White and other eyewitnesses as to the effect on the [appellant] of the drugs prescribed to the [appellant] when considering whether it was proven that the [appellant’s] administration of the fatal dose of drugs to the deceased was accompanied by the requisite specific intent to kill or do grievous bodily harm.
While Ground 1 engages s 158(1)(a) of the Criminal Procedure Act1921 (SA) (“the Act”), the particulars supplied suggest that the primary Judge made errors of fact and/or analysis, thus potentially engaging ss 158(1)(b) and (c) of the Act. There are no separate grounds of appeal dealing with those particulars. On appeal, the particulars alleged at 1.2 were argued as a separate ground of appeal. For the reasons we discuss later, we will treat the particulars as if they were separate grounds of appeal.
Ground 2 falls to be decided as part of Ground 1 for reasons we discuss later.
Legal principles
The appellant contends that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. However, the particulars of Ground 1 potentially engage ss 158(1)(b) and (c) of the Act.
Section 158(1) of the Act relevantly states:
158—Determination of appeals in ordinary cases
(1) The Court of Appeal, on any such appeal against conviction, will only allow the appeal if it thinks that—
(a) the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) on any ground there was a miscarriage of justice.
The test an appellate court applies in relation to this ground is well established.
As Jagot J observed in Lang v The Queen:[7]
The relevant test is that identified in M v The Queen. The 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”. This question “is one of fact which the court must decide by making its own independent assessment of the evidence". While "[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced”, if “a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal” then the court may conclude that no miscarriage of justice has occurred. Accordingly:
where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
In a case where the evidence is circumstantial, this means that the appeal court must “weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard”. A circumstantial case must not be considered “piecemeal”. If, on the whole of the evidence, “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”, then the jury is not able to draw that ultimate inference. Accordingly, in a circumstantial case, it is impermissible to consider any piece of evidence in isolation from the whole.
(citations omitted)
[7] (2023) 97 ALJR 758 at [250]-[251] (Kiefel CJ and Gageler J agreeing).
The decision in M v The Queen[8] (“M”) was unanimously affirmed in MFA v The Queen[9] (“MFA”) and in SKA v The Queen[10] (“SKA”). In MFA it was noted that the reference to “unsafe or unsatisfactory” in M is “equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’”.[11]
[8] (1994) 181 CLR 487.
[9] (2002) 213 CLR 606.
[10] (2011) 243 CLR 400.
[11] MFA v The Queen (2002) 213 CLR 606 at [58] (McHugh, Gummow and Kirby JJ).
In SKA the majority of the Court observed:[12]
The starting point in the application of s 6(1)[13] is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”
…
In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”.
(citations omitted and emphasis added)
[12] SKA v The Queen (2011) 243 CLR 400 at [13]-[14] (French CJ, Gummow and Kiefel JJ).
In Filippou v The Queen[14] (“Filippou”) the High Court considered the approach the appellate court must take when the appeal lies from a conviction after a trial by a judge sitting without a jury. The majority determined that for the purposes of an appeal against conviction “a judge’s finding of guilt is to be treated as if it were the same as a jury’s finding of guilt”.[15]
[14] (2015) 256 CLR 47.
[15] Filippou v The Queen (2015) 256 CLR 47 at [11] (French CJ, Bell, Keane and Nettle JJ).
The primary Judge in Filippou, in her reasons for verdict, observed that a significant factual question arose between the evidence of two important witnesses. The primary Judge resolved the issue unfavourably for Mrs Filippou. The NSW Court of Criminal Appeal found that the primary Judge erred but dismissed the appeal as they were satisfied beyond reasonable doubt that the appellant was guilty.[16] The majority of the High Court observed:[17]
… McClellan CJ at CL did not consider that the errors he identified in the judge's reasoning process were productive of an error in her Honour's conclusion because he was satisfied beyond reasonable doubt that the appellant was guilty. It is as if his Honour conceived himself to be deciding a civil appeal by way of rehearing under s 75A of the Supreme Court Act 1970 (NSW). But, if so, that was not a proper way of disposing of the appeal. As was earlier explained, an appeal from judge alone under s 5 of the Criminal Appeal Act is not an appeal by way of rehearing. Having identified error, the task for the Court of Criminal Appeal is to determine whether the error is productive of a miscarriage of justice. In this context that would have meant determining whether the judge had so erred in fact by preferring Allen's version of events over Mrs Filippou's recollections as to engage either the first or third limbs of s 6(1), or so erred in law by giving “determinative” weight to the appellant's post-offence statements as to engage the second limb of s 6(1); and, if so, then assessing whether it was established that the error was not productive of a substantial miscarriage of justice in the sense of depriving the appellant of a chance of acquittal (or, in this case, a chance of a manslaughter verdict) fairly open to him. To dispose of the matter on the basis simply that the Court of Criminal Appeal was not satisfied that the judge's conclusion was erroneous because the Court of Criminal Appeal considered that the appellant had been proved guilty beyond reasonable doubt did not engage with the requirements of the statutory task.
(emphasis added)
[16] Filippou v The Queen [2013] NSWCCA 92 (McClellan JA at CL, Fullerton and Campbell JJ agreeing).
[17] Filippou v The Queen (2015) 256 CLR 47 at [48] (French CJ, Bell, Keane and Nettle JJ).
Later the majority observed:[18]
Starting with the first of the judge's supposed errors, the question for the Court of Criminal Appeal was not whether it was “satisfied that the judge's account was correct” but whether her Honour's findings as to the sequence of events were not reasonably open. And, plainly, they were open.
(emphasis added)
[18] Filippou v The Queen (2015) 256 CLR 47 at [56] (French CJ, Bell, Keane and Nettle JJ).
As the High Court observed in Dansie v The Queen (“Dansie”):[19]
The authoritative guidance to be gained from the joint judgment in M has not diminished with time. M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the “test set down in M” required a court of criminal appeal to undertake an “independent assessment of the evidence, both as to its sufficiency and its quality” and that consideration of what might be labelled "jury" questions does not lie beyond the scope of that assessment. Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself “to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” and in so doing to form its own judgment as to whether “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”.
(citations omitted)
[19] (2022) 274 CLR 651 at [12].
In Dansie, a case where there were very few disputed facts, the High Court observed:[20]
Not spelt out in any South Australian statute, but implicit in the conferral of the trial function on a judge alone, is that “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. Justifications for recognising that obligation of the trial judge to give reasons include the inability of the Court of Criminal Appeal, in the absence of reasons from the trial judge, to undertake the assessment required of it by s 158(1)(b) and (c) of the Criminal Procedure Act 1921 (SA) when determining on an appeal against conviction “whether the judge has correctly applied the relevant rules of law ... to correct a verdict affected by a wrong decision on any question of law” and “whether there has been a miscarriage of justice as a result of the manner in which the conclusion of guilt was reached”.
Nevertheless, as the decision under appeal illustrates, undue attention to the factual findings on which the trial judge relied in returning a verdict of guilty can distract the Court of Criminal Appeal from the proper performance of the assessment required of it by s 158(1)(a) of the Criminal Procedure Act when determining on an appeal against conviction whether the verdict “should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence”. That is because the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.
That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that “the question which the court must ask itself” when performing that function 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” - , that question being “one of fact which the court must decide by making its own independent assessment of the evidence”.
The joint judgment in M made clear that “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”. The joint judgment equally made clear how those considerations are to impact on the court's independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated.
“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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.”
(citations omitted and emphasis added)
[20] Dansie v The Queen (2022) 274 CLR 651 at [6]-[9].
Thus, when considering a ground of appeal that the verdict should be set aside because it was unreasonable or cannot be supported having regard to the evidence, the court does not determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The appeal court must conduct an independent assessment of the whole of the evidence to ask itself the question of whether it thinks it was open to the trier of fact to be satisfied beyond reasonable doubt that the accused was guilty. That is, the court is required to consider whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence. In each case, the court will conclude that it was not open to the trier of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own assessment of the evidence leads it to have a reasonable doubt that the accused was guilty, unless the trier of fact’s advantage in seeing and hearing the evidence is capable of resolving that doubt.
As the High Court observed in Dansie, the Court warned that where the trial has been by judge alone:[21]
… the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.
(emphasis added)
[21] Dansie v The Queen (2022) 274 CLR 651 at [16].
As mentioned earlier, the appellant submitted that the primary Judge made factual errors, failed to take into account some evidence when determining a particular fact, or, that when arriving at her final conclusion, the primary Judge placed too much weight on various matters. On occasions the submissions appeared to combine some or all those contentions. Care must be taken not to conflate what may be separate grounds of appeal under ss 158(1)(b) and (c) with the ground under s 158(1)(a) of the Act. If, for example, a factual error is identified, the task for the appellate court is to determine whether the error is productive of a miscarriage of justice. In this context that would have meant determining whether the primary Judge had so erred in fact by preferring one witness over another as to engage the third limb of s 158(1) of the Act. If there has been an error of law identified, s 158(1)(b) of the Act is engaged. While a submission about the weight to be given to an inference from a particular fact falls naturally within the unreasonable ground, allegations of errors of fact and a failure to deal at all with certain evidence may raise different questions.
The appellant submitted that the primary Judge erred in her findings on:
a) The method of administration of the drugs;
b) Whether the appellant had a financial motive;
c) Whether the appellant isolated the deceased in order to provide the opportunity to administer the drugs; and
d) Whether the appellant had an altruistic intent if she administered the drugs rather than an intent to kill.
However, for the reasons that follow, we reject the appellant’s submissions on those points. We will deal with them when considering the unreasonable ground of appeal.
Ground 2 relates to the mental element of the offence of murder; the appellant submitted that the verdict of murder could not stand because the finding relating to the intent of the appellant was unreasonable or cannot be supported having regard to the evidence. As such, Ground 2 falls to be decided as part of Ground 1, although the appellant submitted this Court should also consider not only setting aside the verdict of murder but also returning a verdict of manslaughter.
Pharmacological evidence
To understand the appellant’s main submission, it is necessary to consider the pharmacological evidence in some detail.
It was not disputed that the cause of death was the toxic effect of opioids, namely, morphine and/or tramadol. The levels of morphine and tramadol detected in the deceased’s blood at the time of his death were very high. Thus, the effect of the drugs detected and how the deceased was able to consume the quantity of drugs necessary to achieve the levels detected in his blood as at the time of death were important issues.
Both Dr Langlois and Professor White gave evidence about the effect of various drugs and the relevance of the levels detected in the deceased’s blood at the time of his death. Professor White opined on possible methods of administration of the drugs. The appellant submitted that the evidence of Professor White could not establish beyond a reasonable doubt how the appellant came to administer the fatal dose of drugs. It is necessary to discuss the relevance of the evidence of Professor White.
The method of administration of the drugs - the evidence of Professor White
To understand the complaint about the findings relating to the administration of the drugs, it is necessary to consider the evidence as to the level of the drugs at the time of death, the effect the drugs may have had at that level, the quantity of tablets required to be ingested to reach the level detected, and the time frame(s) within which the tablets had to have been ingested. The appellant submitted that, in relation to the question of the administration of the medication, the primary Judge made a finding based on the adoption of one of at least three hypothetical scenarios put forward by Professor White as to the method of the administration of the drugs. This, it was submitted, was a misapplication of the standard of proof in a case reliant on circumstantial evidence.
We interpret this particular as being directed to the finding of the primary Judge as to how the appellant administered the fatal dose, or multiple doses, of drugs. We note from the outset that the prosecution did not set out to prove precisely how the drugs were administered. Indeed, the prosecution accepted that it could not establish beyond a reasonable doubt the precise mechanism of administration. However, the prosecution’s case was that the appellant by some means administered the fatal dose or doses of drugs.
The effect and dosage of the drugs
Morphine
It was common ground that morphine is used to relieve pain of moderate to severe intensity and has a general sedative effect. Morphine consumed at high dosages is dangerous as it blocks the signal to the brain that indicate insufficient oxygen and too much carbon dioxide in the blood. A partial block will lead to a decrease in respiration leading to breathing becoming slow and shallow. In the case of a fatal dose of morphine, a complete block occurs, and the person loses consciousness and eventually stops breathing.
Morphine can cause nausea and vomiting particularly in persons who have not developed tolerance to the drug. Tolerance is determined by several factors and so it varies from person to person. A person taking morphine is likely to acquire a level of tolerance after two weeks. If some tolerance is acquired, the person will have to increase the dosage of morphine in order to achieve the effect that had been experienced prior to acquiring the level of tolerance.
Professor White stated that the level of 0.98 mg of morphine per L of blood found at death was a potentially lethal dose. The morphine was not at a therapeutic level (leaving aside palliative care).
Professor White said that a person would need to consume approximately 20 tablets of 100 mg slow-release morphine, possibly more, to reach a concentration of 0.98 mg per L of blood, if all tablets were taken over a short period of time. If the tablets were taken over several days, a person would need to consume approximately 20 tablets of 100 mg slow-release morphine per day to produce a concentration of 0.98 mg per L. Professor White said these estimates were conservative as they assumed death occurred when the deceased’s morphine concentration was at its highest. He said that it was unlikely that death would occur exactly at that precise point and therefore the number of tablets ingested may have been higher.
Apotex-Morphine MR, the tablets prescribed for the appellant, are modified release (“MR”) tablets. Other products may have “SR” on the packaging indicating slow or sustained release. Each of the terms mean the tablet or capsule has a coating over it ensuring a slow release of the drug. If a modified or slow-release tablet or capsule is crushed or ground down, the coating becomes ineffective allowing the morphine to be dissolved in the stomach more quickly once swallowed. Similarly, if the contents of a capsule are mixed with a liquid, the modified or slow-release capacity of the capsule is lost allowing the morphine to be more quickly dissolved in the stomach.
In relation to tablets which do not have a modified or slow-release coating, or which have been crushed or ground down, Professor White considered that a person would need to consume fewer tablets to reach the concentration detected. He stated that assuming a person died at the time of the maximum concentration, that is, approximately within an hour or two after consuming the tablets, only seven to ten tablets would be required. If the person last consumed the morphine tablets three or more hours earlier, a greater number of tablets would need to be consumed to achieve that level.
Professor White said that there was no factor or circumstance in this matter that pointed to morphine having been consumed by a single dose or by multiple doses over time. Professor White said that the concentration of morphine in the deceased’s blood was well within the range that is associated with death due to an overdose.
On the question of tolerance, Professor White said that if a person is “unaccustomed to taking opioids” (or is “opioid naive”) and that person consumes one or two 200 mg morphine tablets, the effect of the drug will be relatively strong. He said the consumption of one or two 200 mg morphine tablets by an opioid naive person is potentially fatal, and the degree of sedation, respiratory depression, and nausea, can be quite marked. If the tablets were crushed up or emptied into liquid, he would have expected a person to experience those side effects within an hour. However, if a person consumed slow-release or modified release tablets with the slow-release mechanism preserved, that person would experience some side effects within an hour, but the effects would continue to increase over the following two to three hours. As a general proposition, the more tablets taken at once, the quicker the effect on a person.
Tramadol
Tramadol is also an opioid drug. It acts in a way similar to an anti-depressant. It has fewer side effects than morphine, particularly in terms of sedation. However, the risk of respiratory depression remains. There is little medical reason to prescribe both morphine and tramadol.
Professor White stated that the 2 mg of tramadol per L of blood found at death is a potentially lethal dose, notwithstanding that it is below the average concentration found where death is due to an overdose of tramadol alone. Where tramadol is not the main cause of death but rather a contributory cause, the median concentration is 1.1 mg per L (less than in the present case). Professor White opined that tramadol contributed to the deceased’s death, with morphine having been the main cause of death.
To reach a concentration of 2 mg per L of blood, Professor White stated the deceased would have had to consume 14 or more 50 mg tramadol tablets. He agreed that only three and a half or four 200 mg tramadol tablets would result in a concentration of 2 mg per L assuming they were consumed together or within a relatively short period of a few hours. As with the morphine tablets, tramadol can be prescribed with a slow-release (modified) coating. If crushed, that slow-release function would be defeated.
Codeine
Codapene Forte (also sold as Panadeine Forte) was a drug prescribed for the deceased. It is a combination of codeine and paracetamol. Codeine is an opioid drug and its major effect on the body occurs when it is converted into morphine. Paracetamol is a non-opioid drug taken for pain relief.
The level of codeine detected in the deceased’s blood, namely 0.52 mg per L, was not on its own a potentially fatal level of the drug. To reach this concentration, the deceased must have consumed approximately eight Codapene (Panadeine) Forte tablets in a relatively short period of time. Codeine does not accumulate in the blood unless a person takes it every few hours. The morphine component of codeine, approximately 10 per cent, will separate and be converted into morphine. This process may have added approximately 0.01 mg per L to the level of morphine detected in the deceased’s blood.
Diazepam
Diazepam has a number of uses including for the treatment of anxiety and insomnia. It is a muscle relaxant and has a sedative effect. Valium and Antenex are common brand names of diazepam. Diazepam can cause dizziness and difficulties with coordination and balance. If combined with an opioid drug it would enhance the effect of the opioid by increasing the sedation and effect on respiration.
Professor White stated that based on the relative concentrations of diazepam and its metabolite, the deceased consumed diazepam a number of hours prior to his death. The level detected, namely 0.04 mg per L of blood, was low and consistent with a therapeutic dose.
Nitrazepam
Aladorm is the brand name for nitrazepam (previously known as Mogadon). Nitrazepam is normally prescribed for insomnia. Alone, it is unlikely to create a risk of death but it can add to the sedative effects of opioid drugs. Nitrazepam was not detected in the deceased’s blood, only its metabolite, indicating it probably had been taken a day or more before death.
Naproxen
This is an anti-inflammatory drug similar to a range of drugs used for pain relief such as ibuprofen. The detected level of 20 mg per L of blood is consistent with a therapeutic dose.
Metabolites
When a drug has been consumed the body breaks down the drug as part of the process leading to eliminating the drug from the system. During this breakdown, chemical alteration to the main drug occurs and creates a different substance, namely, a metabolite.
However, their presence is relevant to the question of the timing of ingestion of the drugs and how they were administered. The presence of metabolites did not contribute to the cause of death.
Professor White’s opinions on the administration of the drugs
Professor White gave evidence as to how such a large quantity of drugs may have been ingested. Central to this issue was the tumbler the police located on the bedside table alongside the deceased. It contained, as mentioned earlier, a small amount of orange/yellow liquid that “smelt fruity” like “pineapple”, and which Brevet Sergeant Norris thought was juice or cordial. Analysis of the sample revealed trace levels of morphine, codeine, tramadol, diazepam, paracetamol, and naproxen. No metabolites were detected in the sample. The detection of the drugs and the location of the tumbler strongly suggested that the deceased drank from the tumbler at some stage.
The analysis of the deceased’s blood detected metabolites of tramadol, diazepam, and nitrazepam. Thus, the metabolites of some of the active drugs present in the blood sample were not detected in the sample from the tumbler. It was possible that metabolites were present in the liquid in the tumbler but at a level lower than threshold detection levels set by the laboratory. The absence of metabolites was relevant to the timing of the administration of the drugs.
Against that background, Professor White was asked for his opinion as to possible methods of ingestion of the drugs found in the blood sample. He suggested three potential mechanisms.
First, he was asked to assume that the drugs were crushed (removing the slow‑release mechanism) and dissolved in the liquid in the tumbler. The deceased then consumed most of the liquid containing the drugs from the tumbler. A small amount of liquid containing the drugs remained in the tumbler. Professor White said that the drugs consumed by the deceased would enter his bloodstream and his body would process (metabolise) the drugs. This would explain why the metabolites of tramadol, nitrazepam, and diazepam were detected in the deceased’s blood but not detected in the liquid in the tumbler as the drugs would not have had begun to be metabolised. If the deceased consumed between seven to ten 100 mg morphine tablets (not considering the four or more 200 mg tramadol tablets that would have been required to be consumed to reach the measured concentration), as an opiate naive person, he would have become heavily sedated, his breathing would have slowed, and he would have been unresponsive and in a comatose state. Professor White said there is a significant probability that he may have vomited at some stage.
However, in cross-examination, Professor White agreed that if someone ground up seven 100 mg morphine tablets and placed them in pineapple juice, the taste of the drugs would not be masked or disguised by the drink. He said that the taste of morphine is quite strong, so he would not expect the flavour of the juice to neutralise it. He said tramadol, codeine, diazepam, and nitrazepam also have a bitter taste, but not as pronounced as morphine. He said there would also probably be a gritty sensation. Professor White agreed that if tablets were ground up and placed in a liquid, white residue would typically subside to the bottom of the liquid, unless shaken.
Further, Professor White agreed that if someone had ground up between seven and ten 100 mg morphine tablets and a number of tramadol tablets and placed them in liquid in that tumbler, he would expect to see more than trace elements of the relevant drugs given the quantity of liquid in that glass.
The second scenario Professor White suggested was that the deceased’s saliva may have been deposited into the liquid while he was drinking from the tumbler. A person’s saliva may contain drugs (but not metabolites) because the person had orally consumed the drugs very recently. He said you would expect after 10 minutes or so that a drug in a person’s saliva would dissipate. In this scenario, the deceased may have consumed the liquid containing the drugs, and within approximately 10 minutes, the tumbler was refilled with more liquid (not necessarily containing the drugs) which the deceased drank. On this second occasion, each of the drugs present in the deceased’s saliva would be deposited back into the liquid in the tumbler when he drank from it.
For the third scenario, Professor White said it is possible that the deceased consumed the combination of drugs found in the liquid several hours earlier and his saliva was later deposited in the liquid in the tumbler. In this scenario, there is no residual drug in the mouth, but the drugs would be present in his blood circulating around the body. In this way, the drugs would enter the deceased’s saliva as well. The tumbler would then be refilled with more liquid (not necessarily containing drugs), and the deceased may have deposited his saliva into the residual liquid in the tumbler when drinking from it. He said in that scenario, the drugs’ metabolites would also be deposited into the tumbler. He said given no metabolites of the drugs found in the deceased’s blood were detected in the liquid in the tumbler, this scenario is unlikely.
Under cross-examination, Professor White said that if the tumbler had been used on multiple occasions and not cleaned in between uses, it is possible that traces of drugs could have accumulated over time in the residual liquid. He agreed that if the tumbler had been used on multiple occasions to wash down a tablet, he would not expect to find metabolites in the liquid because it is unlikely that a large amount of saliva would have passed into the tumbler. Professor White said he could not exclude this scenario as an explanation for the lack of metabolites in the liquid in the tumbler.
Professor White agreed that if the deceased took slow-release opiate drugs (such as morphine and tramadol) in tablet form (which were not crushed up) at regular intervals in the three days prior to his death, he would expect a continuous build‑up which would lead to increased levels of the drugs detected in the deceased’s blood. Professor White agreed that the additive effect of continually taking opiates could account for the post-mortem opiate levels in the deceased’s toxicology results. However, he said that a person would need to consume approximately 20 slow-release 100 mg morphine tablets per day over that three day period to reach a concentration of 0.98 mg per L of blood.
On these issues the primary Judge found:
… I am satisfied beyond reasonable doubt that Ms Dent administered the prescription drugs to the deceased. I am satisfied that she administered the drugs that caused the deceased’s death in either a single dose or more than one dose. I am satisfied that the toxicology evidence allows for both scenarios. Dr Langlois could not say how long before his death the deceased had consumed the drugs. Professor White said there was nothing that points either to the fatal dose being given in a single dose or in multiple doses over a period of time.
As to the fact there is only a small amount of liquid and no sediment in the tumbler, that is explained by the fatal dose of drugs being crushed into the tumbler and being administered by Ms Dent to the deceased and then the tumbler having been cleaned or washed out (so that the sediment is removed). The tumbler is then used again by the deceased within 10 minutes or so to consume a juice drink (without drugs) so that his saliva (containing the drugs which he had earlier consumed) is washed back into the remaining liquid in the glass. In this way, there is limited sediment and limited liquid in the tumbler. There would be no metabolites detected in the liquid because the drug is yet to be processed within the body. I am satisfied Ms Dent undertook that process either once or more than once in administering a fatal dose or fatal doses to the deceased causing his death.
(footnotes omitted and emphasis added)
Appellant’s submissions
The appellant submitted that as Professor White had offered three possible scenarios, it was not open for the primary Judge to be satisfied beyond reasonable doubt as to any one of them. The appellant submitted that the primary Judge misapplied the standard of proof in a circumstantial case by adopting one of at least three hypothetical scenarios that were reasonably open.
We reject that submission.
The prosecution did not set out to prove any particular method of administration; it was not necessary that it do so. While Professor White’s evidence focused on the uses of the tumbler (given the traces of the drugs were detected in the sample), it was not necessary for the prosecution to prove that use of the tumbler was the only means of ingestion. Other methods of ingestion may have been used. The method of administration of the drugs was not an indispensable fact in the reasoning that needed to be proved beyond a reasonable doubt. What had to be established beyond a reasonable doubt was that it was the appellant who administered the drugs and that she did so with the requisite intent. The scenarios presented by Professor White were simply evidentiary pathways to that conclusion based on the evidence he was asked to assume. The primary Judge found beyond a reasonable doubt that the appellant administered the prescription drugs to the deceased. She was unable to say whether the appellant did so in one or more doses. That is, the primary Judge was not able to specify the precise method of administration of the drugs. That the primary Judge found that the tumbler was washed at various stages was simply an evidentiary pathway to the conclusion.
The appellant submitted that it was not open to the primary Judge to find that the appellant washed the tumbler, as the evidence did not exclude the possibility that metabolites were present in the tumbler but below the detection threshold set by the laboratory.
We reject that submission.
First, the washing of the tumbler, as discussed earlier, was not a fact the primary Judge had to find established beyond a reasonable doubt. Secondly, the absence of sediment in the bottom of the tumbler supported the finding that the tumbler had been washed, or alternatively, that the tablets had not been crushed before administration. Thirdly and perhaps more importantly, even if metabolites had been detected in the fluid located in the tumbler, that does not impinge on the finding that the appellant administered the drugs to the deceased. Assuming that traces of metabolites were present but undetected, their presence could only affect the timing as to when certain drugs had been administered. That is, the drugs must have been in the deceased’s system for a period sufficient for the body to metabolise some of the drug.
The prosecution case was not dependent on the finding that the tablets had been crushed. Some, all, or none of the tablets ingested may have been crushed. Tablets may have been given close together in time or over a longer period, possibly days. The prosecution had to establish beyond a reasonable doubt that it was the appellant who administered the drugs to the deceased. To do that they had to exclude any reasonably possible hypothesis consistent with innocence such as suicide.
In addition to criticising the primary Judge’s approach to Professor White’s evidence, the appellant submitted that the primary Judge erred in finding that the prosecution had excluded as reasonable possibilities the alternative hypotheses, namely, self-administration by suicide or accident. The appellant submitted that the primary Judge failed to take into account or give sufficient weight to evidence which contradicted her findings. The appellant during the course of submissions challenged a number of findings.
The appellant submitted that the primary Judge erred in finding that the deceased, at the time of death, was suffering from only “mild back pain”. The evidence, the appellant submitted, demonstrated that the deceased in the months leading up to his death was physically active and agile. He then suffered an injury to his back for which he sought medical assistance. Anti-inflammatory medication was prescribed but it did not control his pain. Despite the deceased being a “frugal” person, he saw a doctor on a Sunday, paying a gap fee of $70. He was prescribed Panadeine Forte. These facts, the appellant submitted, demonstrated that the deceased’s back pain was greater than mild.
In her reasons for verdict, the primary Judge clearly had regard to all the evidence on this issue. She had regard to the evidence of family and friends of the deceased who did not observe the deceased to be exhibiting signs of back pain. More importantly. the primary Judge referred to the evidence of the two medical practitioners who the deceased consulted shortly prior to his death.
The primary Judge stated:
During his consultation with Dr Osborne on Wednesday, 25 November 2015, the deceased described his level of back pain as low when completing physical activities and absent at rest. At that stage, he had not taken any medication for pain relief. Dr Osborne said that she advised him to remain active and avoid bed rest but to not do excessive activity. I am satisfied that had the deceased been experiencing severe back pain at this time, he would have said so, and had he been exhibiting any signs of severe back pain, Dr Osborne would have noted them.
In the days which followed his appointment with Dr Osborne, the deceased told others that his back was still causing him pain. He told Mr Walsh that the back pain was ‘still there but better [sic] can move now’. He also complained of back pain to Mr Campanella.
However, during the deceased’s consultation with Dr Giamos on Sunday, 29 November 2015, he told her that he required stronger pain relief, but he did not say that his back pain had worsened. Dr Giamos described him as exhibiting no apparent distress or pain and walking normally. She said that in her opinion the deceased was suffering from a reasonably mild musculoskeletal problem. She prescribed him 20 Panadeine Forte tablets (with no repeats) and instructed him to take one to two tablets every four hours if required, with a maximum of eight tablets in any 24-hour period.
On the basis of the medical evidence and the observations of the deceased’s friends and family, I am satisfied that as at 29 November 2015, the deceased was suffering from mild back pain for which he had been prescribed medication (naproxen and later, Panadeine Forte) and advised against complete bed rest. There was no legitimate medical reason for him to be confined to bed rest.
(footnotes omitted)
The evidence supports the findings made by the primary Judge. The findings were plainly open to her. No error has been demonstrated. There remains the possibility that the deceased’s pain worsened after 29 November 2015 but there is no evidence to this effect. The primary Judge’s finding was confined to that date.
The issue of the deceased’s back injury is linked with the primary Judge’s finding that the appellant isolated the deceased in the days leading to his death. The appellant submitted that the primary Judge either overlooked or failed to give sufficient weight to evidence that was contrary to her finding.
Evidence that the appellant isolated the deceased is relevant to the question of pre-meditation or pre-planning. The probative force of the evidence turns on the extent to which the evidence of the conduct was circumstantially probative of the appellant administering the drugs and her intent when doing so. As Kourakis CJ observed in Bristow v The Queen:[22]
Evidence of conduct preceding the commission of an offence (preceding conduct evidence) is admissible if it circumstantially bears on the probability of the commission of the offence, and it may do so even in the absence of a discrete finding as to whether the accused engaged in the preceding conduct and as to his state of mind when he did so.
[22] (2020) 137 SASR 449 at [210] (Nicholson and Bleby JJ agreeing).
Once that assessment is made, the evidence of the conduct falls to be considered with all the evidence in the case.
The charged offence does not include premeditation as an element. It is a piece of circumstantial evidence and, as it is not an indispensable step in reasoning to a finding of guilt, it does not need to be established beyond a reasonable doubt.
Having found that there was no legitimate medical reason for the deceased to be confined to bed rest, the primary Judge relevantly found:
I am satisfied that Ms Dent made efforts to dissuade the deceased’s friends and family from seeing and speaking with him in the days preceding his death. She attempted to isolate the deceased in the following ways. First, by taking his mobile telephone so that he could not answer or return any phone calls. She also did not return any calls on his behalf. Second, by telling his family and friends not to call or visit the deceased. Third, by not allowing Ms Fisher who attended the Premises, by prior arrangement with the deceased, to see him.
In relation to taking the deceased’s mobile telephone away from him, I consider Ms Dent’s explanation (as provided to Mr Campanella) that she did so as every time the deceased tried to turn over to answer his phone he was in ‘massive pain’ is implausible. I do not accept he was in massive pain (on the basis of the medical evidence discussed earlier). Further, and in any event, that did not preclude Ms Dent from returning phone calls on his behalf. Mr Walsh made numerous efforts to speak with the deceased. During the latter calls and text messages he made it clear that he was very worried about him. He implored him to return his calls and text messages. Mr Walsh had also planned a birthday celebration for him on 1 December, yet there was no response in relation [sic] his inquiries about the dinner and no effort to cancel or postpone it. Mr Herbert left a message that his father had died (with whom the deceased was close), yet that text message too went unanswered and was not returned.
Ms Dent also asked Ms Tracy Lawrence and Mr Kym Lawrence to not call or contact the deceased. Ms Tracy Lawrence was a nurse. She lived close by. If the deceased’s condition had genuinely deteriorated to the extent that he was in severe pain, it is implausible that Ms Dent would not have contacted his sister at the very least, let alone seek medical assistance.
For these reasons, I am satisfied that Ms Dent made efforts to isolate the deceased from his friends and family from Sunday, 29 November 2015.
(footnotes omitted)
The appellant submitted that the primary Judge overlooked evidence from Mr Harley Geissler that the appellant, around the relevant time, suggested that he visit and see the deceased for his birthday. However, he did not do so. The appellant also relied upon an inference from the evidence of the neighbours of the deceased, Mr Martin Dalton and Mrs Tracey Dalton, that they often visited the deceased on his birthday. The appellant submitted that the evidence revealed that she did not tell them they should not visit. However, as it transpired, they did not visit.
We do not accept that the primary Judge failed to consider that evidence. The primary Judge had regard to the appellant’s submissions noting that the appellant’s counsel submitted:
Far from being isolated from friends and family, the deceased remained in his home and others were invited to visit. For example, Ms Dent invited Ms Fisher into their home. She also told Ms Tracy Lawrence about her concerns for the deceased on 30 November 2015. On the defence case, this was a ‘cry for help’ by Ms Dent. If she was isolating the deceased to kill him, why risk Ms Tracy Lawrence’s intervention?
(emphasis added)
It is clear that the primary Judge had regard to the evidence. That she gave the example of Ms Linda Fisher does not mean she did not consider Mr Harley Geissler’s evidence or the suggested inference from the evidence of Mr Martin Dalton and Mrs Tracey Dalton.
The fact that neither Mr Harley Geissler nor Mr Martin Dalton and Mrs Tracey Dalton visited the deceased means their evidence is of little weight. What may have occurred had they visited is speculative. Ms Linda Fisher, who did visit, was not permitted to see the deceased. Ms Susan Lawrence, the deceased’s sister, was told not to visit. The fact that the appellant took possession of the deceased’s mobile telephone was not disputed. The text messages the primary Judge relied upon were not disputed.
That the appellant stopped other persons from visiting the deceased was clearly open on the evidence.
We reject the submission that the primary Judge was in error in her approach. The question remains, however, as to what weight the evidence should be given when we make an independent assessment of the evidence.
The appellant submitted that the primary Judge erred in finding that the relationship between the appellant and the deceased was faltering. The appellant submitted that the primary Judge failed to have regard to the evidence that described their relationship in positive terms. We reject the submission that the primary Judge failed to consider all of the evidence on the topic.
The primary Judge’s reasons demonstrate very clearly that she had regard to all of the evidence on this topic. On this topic, the primary Judge referred to the prosecution evidence as “minor incidents”. She described the minor incidents. The primary Judge contrasted the minor incidents with the evidence, including evidence from the deceased’s family, that the deceased and the appellant appeared “happy together” and that they “were affectionate towards each other”.
On this topic the primary Judge found:
It is difficult to make any definitive finding as to the state of their relationship in the weeks leading up to the deceased’s death. Ms Dent and the deceased lived alone and they did not appear to spend large amounts of time with any persons in late 2015 who could shed any real light on the state of their relationship at the time. The evidence was to the effect that Ms Dent and the deceased appeared generally happy and content in their relationship, albeit with some moments of frustration or displeasure expressed by the deceased. These moments appear to be relatively minor in the context of a de facto relationship of almost 18 months. I am satisfied however, that there was some tension in their relationship in the months leading up to the deceased’s death.
The primary Judge had regard to the evidence on this topic. Her finding is consistent with the evidence and was reasonably open to her. No error has been demonstrated.
While we have rejected the submission that there was an error in the primary Judge’s approach, the question remains as to what weight the evidence should be given when we make our independent assessment of the evidence.
The appellant also submitted that the primary Judge erred when making a finding about the administration of Valium.
The primary Judge found:
As discussed earlier, the pharmacological evidence suggests that the diazepam was consumed at least several hours before his death. - The nitrazepam was consumed up to several days preceding his death. I am satisfied that Ms Dent administered these drugs separately to the deceased in the days and hours before administering the fatal dose or fatal doses of the opioid drugs which caused his death. The drugs would have had a sedative effect upon him which would have made him more vulnerable to taking the fatal dose or fatal doses of the opioid drugs.
(footnotes omitted)
The appellant submitted that this was a critical finding. We reject that submission. It was a finding open to the primary Judge, but it was not a critical finding. The evidence from Professor White was that Valium (diazepam) does have a sedative effect and he considered that the toxicology results (the presence of the metabolite) meant it had been taken “hours before his death”. However, the appellant correctly submitted that Professor White agreed that the toxicology result allowed for the possibility that it had been ingested 24 hours before death. While Professor White allowed for such a possibility, that does not mean the primary Judge’s finding was in error. Morphine itself has a sedative effect. The finding on Professor White’s evidence was open. The timing of the ingestion of Valium was not a matter that had to be proved beyond a reasonable doubt.
We reject the submission that the primary Judge made errors in her assessment of the evidence. However, we accept that the appellant’s arguments are relevant to our independent assessment of the evidence.
Financial motive
Motive is a piece of circumstantial evidence which depends upon the drawing of inferences. Motive is simply one item of evidence in a case that may tend to show that a person who committed an act acted with a particular intention.[23] Proven motive is a matter which may support or assist in drawing an inference of intention; it may also be relevant to whether an accused committed the offence charged. As Lord Atkinson stated in R v Ball:[24]
Evidence of motive necessarily goes to prove the fact of the homicide by the accused ... inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.
[23] De Gruchy v The Queen (2002) 211 CLR 85 at [57] (Kirby J).
[24] R v Ball [1911] AC 47, 68.
Evidence of motive may be strong or it may be weak. However, motive is not an element of the offence and it is not necessary as a matter of law for the prosecution to prove that an accused had any particular motive. Even if motive can be proved as part of a circumstantial case, that will not, of itself, be sufficient to establish guilt of the offence. It can assist, however, in a significant way.[25]
[25] R v Georgiev (2001) 119 A Crim R 363 at [78] (Ormiston JA).
The primary Judge found that the appellant had a financial motive to kill the deceased. As the primary Judge observed, at the commencement of the relationship, the appellant had minimal assets and was in receipt of the disability pension. The relationship with the deceased was less than two years’ standing. The appellant had a personal injury claim which she considered may have been worth approximately $200,000. It later settled for $70,000.
The primary Judge found:
I am satisfied that Ms Dent had a financial motive to commit the offence. She stood to financially benefit from the deceased’s death in three significant ways. First, she would no longer have to repay the deceased money he had spent on her behalf or on mutual assets, such as the motorhome. I am satisfied that the deceased expected her to repay at least a significant proportion of this money. Second, she was the beneficiary of his superannuation fund which, as at 24 November 2015, held a balance of approximately $175,462. Third, Ms Dent was the executor and main beneficiary of a will signed on 25 September 2015. She stood to inherit the Premises which was unencumbered, not the subject of a mortgage, and valued at about $235,000 as at December 2015.
(footnotes omitted)
The appellant does not contest that she stood to gain the balance of the deceased’s superannuation of $175,462 and the unencumbered house valued at $235,000. While the appellant accepts that there were arrangements in place for her to repay the money on mutual assets such as the motor home they had purchased, she submitted that the evidence suggested that the deceased would not have required such repayments. The appellant submitted that the deceased’s generosity towards the appellant during their relationship meant it was doubtful that he would have insisted on repayment.
These submissions were put to the primary Judge. The primary Judge was satisfied that the deceased did expect the appellant to repay a significant proportion of the monies owed. That is, the primary Judge accepted that there was a possibility that the deceased may not have insisted that all monies be repaid. The primary Judge’s finding was clearly available on the evidence.
In any event, the important benefits accruing to the appellant on the deceased’s death were the superannuation and the unencumbered house. There was no dispute that the appellant would receive those benefits. There was no doubt that the appellant stood to receive a substantial financial benefit on the death of the deceased.
In reaching her conclusion that the appellant had a financial motive to kill the deceased, the primary Judge relied on the evidence establishing that the appellant thought the deceased may be, shortly prior to his death, considering changing his will. The evidence established that in the weeks leading up to the deceased’s death the appellant became aware that the deceased was reconsidering aspects of the will.
The primary Judge relied on the evidence of Mr Kym Lawrence, the deceased’s brother. The primary Judge found:
Most significantly, on 29 November 2015, Ms Dent telephoned Mr Kym Lawrence. I accept Mr Kym Lawrence’s evidence as to the content of their conversation. Ms Dent asked him if the deceased had spoken to him about his will. He responded by saying that if the deceased had done so it was between them and she should ask the deceased about it. This conversation is important for the following reasons. First, Ms Dent felt the need to raise the matter of the deceased’s will with Mr Kym Lawrence (rather than the deceased). Second, she received no real answer from Mr Kym Lawrence as to her inquiry which would have heightened her concerns. Third, the conversation occurred very shortly before the deceased’s death. I infer from that conversation that Ms Dent was concerned about the deceased’s will and was probing Mr Kym Lawrence about the deceased’s attitude towards his will.
In accepting Mr Kym Lawrence’s evidence on this topic, I have not overlooked that there was no warmth between Mr Kym Lawrence and Ms Dent before the deceased’s death. There was also clear animosity between them after his death. More broadly, the deceased’s siblings (who were close to each other) clearly blamed Ms Dent for his death almost immediately after she reported it. They were open and transparent in their animus towards Ms Dent. They maintained close contact with the Coroner’s office and the police throughout the investigation and took an active interest in it. However, notwithstanding those matters, I consider Mr Kym Lawrence presented as a straightforward witness who gave his evidence in a blunt and unvarnished manner without embellishment. I consider him to be truthful and accurate in his evidence that Ms Dent raised the topic of whether the deceased had spoken to him about his will on 29 November 2015, a few days before the deceased’s death.
(footnotes omitted)
The evidence of Mr Kym Lawrence was relevant to the question of the appellant’s perception of whether the deceased was intending to change his will. His evidence, although uncontradicted by other evidence, was contested. The primary Judge had regard to the appellant’s criticisms of his evidence but considered Mr Kym Lawrence was a truthful and accurate witness “who gave his evidence in a blunt and unvarnished manner without embellishment”. On a review of his evidence there is nothing about Mr Kym Lawrence’s evidence which would suggest he was not a truthful witness. It was open on the evidence for the primary Judge to accept the evidence.
There is no error demonstrated in the primary Judge’s approach. It was open to the primary Judge to draw the inferences she did. The evidence of Mr Kym Lawrence was a piece of circumstantial evidence relevant to the question of the appellant’s financial motive.
Again, the fact that no specific error has been demonstrated does not mean that the appellant’s submissions on these matters are to be disregarded when considering Ground 1. The question of the weight to be given to the evidence remains to be determined on our independent assessment of the evidence.
Capacity
The appellant submitted that the primary Judge erred in failing to have regard to the effect that the medication she was taking may have affected her capacity to form the specific intent to kill or cause grievous bodily harm. While this forms the basis for Ground 2, it is in effect an argument that the finding that the appellant did form the intent to kill was unreasonable or against the weight of the evidence.
On appeal, the appellant accepted that she was not submitting that her level of intoxication was such that she was incapable of forming the specific intent. Rather, she submitted it was a reasonable possibility that her use of medication affected her cognitive capacity such that she may have, in attempting to assist the deceased with his level of pain from his back injury, given him too much medication. This, it was submitted, could be due to the combination of the fact that, as a regular user, she had a high tolerance to the medication in addition to the medication affecting her cognitive capacity. The appellant relied upon Professor White’s evidence that he would have expected that, assuming she took the medication at the prescribed levels, she would have “some impairment of general cognitive functioning” and cause her to make “errors of judgment”.
While not relevant to the question of motive, the respondent pointed to the substantial body of evidence which contradicted any suggestion that the appellant’s cognitive capacity was affected, at least on the day of the deceased’s death. In particular, the respondent submitted that the appellant’s conversations about the deceased’s will with the deceased’s family members, very soon after they arrived at the deceased’s residence, were not suggestive of any cognitive problems.
Further, the respondent submitted that there was no evidence that the appellant appeared, or was, intoxicated at that time. None of the ambulance officers or police who attended the premises that morning suggested that the appellant appeared to be affected by drugs. Further, the appellant attended Dr Osborne’s office at 4.20 pm on 3 December 2015. Dr Osborne noted that the appellant was very emotionally labile, being upset and crying when speaking about the deceased, but would then stop crying and respond normally to specific questions when asked. The appellant then requested a prescription for her medications. When cross examined by the appellant’s counsel at trial, Dr Osborne confirmed that the appellant was not exhibiting any signs of intoxication.
The respondent submitted the evidence established that the appellant was capable of making a telephone call to the National Australia Bank at 5.15 am on 3 December 2015, at a time when the deceased would likely have already been dead. At 6.07 am, 53 minutes after the telephone call to the bank, the appellant called triple zero and stated “I’ve just woken up and found my partner dead in bed beside me”. She also stated “he’s dead for quite a. [sic] He’s obviously been dead for quite some time, he’s cold”. Her account to the triple zero operator of having “just” woken up and discovered the deceased in bed next to her is inconsistent with her having called the bank almost an hour earlier. Her account to the triple zero operator was inconsistent with other accounts that she gave.
In her record of interview and when speaking to Senior Constable Cain on the morning of the deceased’s death, the appellant denied giving the deceased any drugs apart from some Valium. The respondent submitted that the evidence of Professor White was general and the suggestion of interference with her cognitive capacity was speculative.
The primary Judge addressed this issue. The primary Judge considered the fact that the appellant had been prescribed very high doses of the drugs and that she had been taking the drugs for many years without incident. The primary Judge also acknowledged that the appellant had offered her prescription drugs to others for pain relief. The primary Judge considered the evidence of Professor White.
Having found that the appellant had administered all the drugs to the deceased, the primary Judge carefully considered the question of the appellant’s intent when doing so. However, the primary Judge found that the evidence, when considered in its entirety, excluded any reasonable hypothesis consistent with innocence; she found that the appellant administered the drugs with the intention to kill the deceased. No error has been shown in the primary Judge’s approach.
We reject the submission that the primary Judge failed to consider the issue. As mentioned before, the fact that no specific error has been demonstrated does not mean that the appellant’s submissions on these matters are to be disregarded when considering Ground 1. The question of the weight to be given to the evidence remains for us to consider as part of our independent assessment of the evidence.
Discussion
We have conducted an independent review of the evidence. When considering Ground 1, we leave to one side that we did not find there to have been any error in the factual findings on which the primary Judge relied in ultimately finding the accused guilty of the offence tried. That said, we make the following observations.
Our review of the evidence includes the alleged post offence conduct of the appellant. The alleged post offence conduct centred around what the prosecution alleged were lies told from a consciousness of guilt. The primary Judge rejected the prosecution’s submissions on this issue and decided that she would not reason “that [the appellant] told any of her deliberate lies because she knew the truth would implicate her in the commission of the offence”.
On appeal neither party challenged this finding; it was a finding favourable to the appellant. Given the way the appeal was conducted, we consider that we should approach our assessment of the evidence adopting that favourable finding for the appellant.
The same reasoning applies to the appellant’s record of interview with Detective Brevet Sergeant Tucker on 17 February 2017.[26] The primary Judge rejected exculpatory assertions made by the appellant as false or untrue. However, she did not use any of those matters as demonstrating a consciousness of guilt. This was another favourable finding for the appellant. On appeal, there was no challenge to the primary Judge’s findings and the use she made of matters arising in the record of interview. We consider that we should adopt the primary Judge’s favourable approach and put the assertions to one side and not use them as lies establishing a consciousness of guilt.
[26] Exhibit P58; Exhibit P58a.
Apart from reviewing the evidence, we have considered the submissions of both the appellant and the respondent. As indicated earlier, while we have found that the primary Judge did not make the errors the appellant alleged, her submissions on those issues still remain important when considering the inferences to be drawn from all of the evidence.
Returning to the question of the test on appeal, we must conduct an independent assessment of the whole of the evidence to ask ourselves the question whether we think it was open to the primary Judge to be satisfied beyond reasonable doubt that the accused was guilty. That is, we are required to consider whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the appellant is guilty of the offence. We would be required to conclude that it was not open to the primary Judge to be satisfied beyond reasonable doubt that the accused was guilty if our own assessment of the evidence leads us to have a reasonable doubt that the appellant was guilty, unless the primary Judge’s advantage in seeing and hearing the evidence can resolve that doubt.
We do not intend to summarise the prosecution’s evidence. We accept that the appellant had the means, the opportunity, and the motive to kill the deceased. The appellant clearly had access to a large quantity of the drugs that caused the deceased’s death. Professor White’s evidence, based on the toxicology results, establishes the startlingly high number of morphine and tramadol tablets required to be ingested to reach the levels detected in the deceased’s blood. Professor White’s evidence established that the deceased would have to have ingested at least 20 morphine tablets (10 if crushed) within a short period (a few hours) or 20 such tablets a day if consumed over a few days, as well as three and a half to four 200 mg tramadol tablets (significantly more if 50 mg tablets), and eight Panadeine Forte tablets.
We agree with the primary Judge’s findings regarding the lies told by the appellant. As discussed earlier, the lies are not to be used as demonstrating a consciousness of guilt. Like the primary Judge, however, we reject the exculpatory statements made by the appellant as not credible.
The thrust of the appellant’s submissions on appeal was that the evidence could not exclude as a reasonable possibility that she alone administered the drugs that caused the death of the deceased. The appellant submitted that the combined effect of the evidence could not exclude reasonable possible hypotheses, namely that:
a) The deceased committed suicide;
b) The deceased accidently ingested a fatal dose of medication when treating himself for his back injury; or
c) That she gave him some medication and the deceased took some unknown to her, the combination proving fatal.
The appellant also submitted that the evidence did not establish beyond a reasonable doubt that if she had administered all the drugs, she did so with an intent to kill. The appellant submitted that the prosecution could not exclude as a reasonable possibility consistent with innocence that her mental state was affected by the drugs she took, such that she administered the drugs in the mistaken belief that she was assisting in treating the deceased’s back pain. The appellant submitted that a verdict of guilty of manslaughter was appropriate in those circumstances.
We consider the suggestion that the deceased committed suicide is fanciful. There was simply no evidence that the deceased was considering committing suicide. The suggestion by the appellant in her record of interview that the deceased was suffering a terminal illness is simply not plausible. The evidence established that the deceased, notwithstanding his back injury, was in good physical and mental health.
The submission that the deceased could have accidentally ingested too much medication when treating his back pain, is also fanciful. The evidence as at 29 November 2015 or thereafter does not permit a finding that the back injury the deceased suffered, whilst causing him some pain, was particularly debilitating. The appellant’s assertions in the record of interview about how much pain the deceased was experiencing are in stark contrast to the medical evidence generally, and in particular the observations of Dr Giamos. Dr Giamos, who saw the deceased on 29 November 2015, stated that the deceased exhibited no signs of distress and walked normally.
The evidence points overwhelmingly to the conclusion that the appellant deliberately isolated the deceased from his friends and family. This is evidence of pre-planning and is also relevant to the question of intent.
The location of the tablet packets when found by the police and the absence of the deceased’s DNA on the packaging supports the prosecution case.
We consider the submission that the deceased could have accidentally ingested that amount of medication, whether alone or with the assistance of the appellant, in attempting to treat his back pain, is also fanciful. We reject the submission that the deceased would have ingested that number of tablets to treat his back condition no matter how his condition were to be characterised.
The appellant submitted that the evidence did not establish a financial motive sufficient to draw the inference that the appellant intended to kill the deceased. The prosecution did not have to prove that the motive alone entitled such an inference to be drawn, nor did the prosecution set out to do so. The prosecution proved that the appellant benefitted substantially from the death of the deceased and that she was interested in whether he was considering changing his will. These were pieces of circumstantial evidence in the case against the appellant. Motive by itself cannot prove a case and the prosecution did not suggest otherwise.
The appellant submitted that the evidence demonstrated that she took the medication at reasonably high levels on medical advice. The evidence of Professor White allowed for the fact that, at such prescribed levels, her cognitive capacity would have been affected. The appellant denied administering any drugs, apart from Valium, to the deceased. There is no direct evidence as to her cognitive state at the relevant time. The evidence of those attending the premises after the appellant rang triple zero did not support the suggestion that she was affected at that time. She denied giving the deceased any drugs apart from Valium.
Having considered all of the evidence, we are satisfied that it was open to the primary Judge to be satisfied beyond reasonable doubt that the appellant was guilty of murder. We find that the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the appellant is guilty of the offence. Our assessment of the evidence does not cause us to have a reasonable doubt about the guilt of the appellant.
Permission to appeal on Ground 1 is granted. We would dismiss Ground 1.
Ground 2
This has been dealt with under Ground 1. Having reviewed the evidence, we do not have a reasonable doubt about her guilt. That of course means that the prosecution has established beyond a reasonable doubt that the appellant at the relevant time had the capacity to form an intention to kill the deceased. Permission to appeal on Ground 2 was granted on 10 October 2022. We would dismiss Ground 2.
Order
Permission to appeal on Ground 1 is granted. We would dismiss the appeal.
NICHOLSON AJA: I agree that the appeal should be dismissed. I agree with the reasons of Livesey P and Lovell JA but add the following further observations.
A motive of the nature found in this case where the deceased and the accused are in a domestic relationship, standing alone, usually will carry little or no weight. A large proportion of the population will have such a potential motive but not act upon it. Where domestic partners are concerned, the presence of a motive is helpful to the prosecution case in the sense that without it the circumstantial evidence otherwise pointing to murder will be weakened, sometimes significantly so.
In this case, the appellant, as the domestic partner of the deceased, had the means, the opportunity and a, not insignificant, potential motive. As far as the means is concerned, the appellant had access to large quantities of the medication found in the deceased’s bloodstream and which caused his death. As far as opportunity is concerned, the appellant and the deceased lived together, with no-one else, 24 hours a day and the appellant ensured that the deceased remained isolated from visitors throughout a critical five or so day period.
The precise means by which the deceased consumed the morphine, tramadol, codeine and Valium cannot be known. However, human intervention was essential. There are only four conceivable possibilities:
(i)the deceased obtained access to the appellant’s medication and consumed a large quantity with the intention of taking his own life;
(ii)the deceased obtained access to the appellant’s medication and, of his own volition and without the knowledge of the appellant, used it during the isolation period for pain relief but to an extent that resulted in an accidental fatal overdose;
(iii)the appellant assisted the deceased with pain relief during the isolation period by giving him her medication but to an extent that resulted in an accidental fatal overdose; and
(iv)the appellant intentionally killed the deceased.
I have conducted my own examination of all of the evidence and the parties’ respective submissions. Having done so, I am satisfied that each of (i), (ii) and (iii), whilst conceivable, is not a reasonable possibility. For the reasons given by Livesey P and Lovell JA, (i) and (iii) are speculative at best. The second notion, that the deceased consumed the appellant’s medications on multiple occasions each day over a period of days without the appellant’s knowledge and assistance, is fanciful. The circumstantial evidence, considered as a whole, points only to (iv). It was open to the primary Judge to find, as her Honour did, the prosecution case for murder to have been proved beyond reasonable doubt.
It is at first troubling that the precise means used by the appellant to get the deceased to ingest the very large amount of medication that he must have consumed, cannot be established. Furthermore, the case appears to have been prosecuted on the assumption, apparently adopted by the primary Judge, that the medication was consumed in one dose or multiple doses, crushed or uncrushed, when the deceased drank, perhaps multiple times, from the tumbler by the bed which contained traces of the medication in the residue. Any such assumption, whilst consistent with case theories or hypotheses available on the evidence of Professor White, would be unfounded. The quantities of the tablets being so large and the taste and grittiness features of the morphine and tramadol suggest that the consumption of multiple doses over time, rather than all of the medication in one glass of juice, was the more likely. The appellant would have had numerous opportunities during the period of isolation to provide a combination of pain relief to the deceased and additional crushed medication disguised in wet or soft food and drink provided to the deceased over the period. I raise this simply in order to expand upon the nature of the opportunity available to the appellant not as advocating an established means by which the crime was committed. As Livesey P and Lovell JA have stated, the prosecution was not required to prove the precise means by which the appellant intentionally caused the death of the deceased, only that she did so.
[13] Section 6(1) of the Criminal Appeal Act 1912 (NSW) mirrors s 158(1) of the Criminal Procedure Act 1921 (SA).
- AGLC
- Dent v The King [2024] SASCA 12
- Case
- [2024] SASCA 12
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Full Court were whether the verdict of guilty was unreasonable or unsupported by the evidence. This involved determining if the trial judge had erred in finding that the prosecution had established beyond reasonable doubt that the appellant administered a combination of drugs causing the deceased's death, that a sufficient motive existed for the appellant to intend to kill the deceased, and that the appellant possessed the requisite specific intent to kill or cause serious injury, considering the evidence of her own intoxication.
The Court reiterated the principles governing circumstantial evidence, emphasising that for guilt to be established beyond reasonable doubt, it must be the only rational inference permitted by the circumstances. While individual pieces of circumstantial evidence need not be proved beyond reasonable doubt, their cumulative weight must lead to this standard. The Court stressed that all evidence must be considered holistically, and inferences favouring the prosecution must be weighed against explanations and submissions put forward by the accused. The Court noted that while a circumstantial case should not be considered piecemeal, it is important to consider the accused's explanations for individual items of evidence.
The appeal was dismissed. The Court found that the trial judge had not erred in her findings of fact regarding the cause of death, motive, or intent, and that the verdict was not unreasonable or unsupported by the evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In a case relying on circumstantial evidence, to be satisfied beyond reasonable doubt of the guilt of an accused, it is necessary not only that guilt should be a rational inference, but that it should be the only rational inference that the circumstances permit. However, to be reasonable, an inference must rest upon something more than mere conjecture. It is necessary to weigh and consider the totality of the evidence and, in doing so, the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence. A circumstantial case is not to be considered piecemeal. Often in a circumstantial case there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. However, it is of critical importance to remember that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. As Gibbs CJ and Mason J stated in Chamberlain v The Queen (No 2):[6] At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence.Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider “the weight which is to be given to the united force of all the circumstances put together”.(citations omitted)[6] (1984) 153 CLR 521, 535. While a circumstantial case is not to be considered piecemeal, it is important to bear in mind, both at trial and on appeal, any inferences, explanations, and submissions put forward by an accused in relation to individual items of circumstantial evidence. To put that another way, resolution of the case depends upon assessment of all the evidence and that includes, of course, not just inferences in favour of the prosecution but inferences, explanations, and submissions put forward on behalf of the accused.Grounds of appeal The appellant appeals on the following grounds:1. The verdict should be set aside on the grounds that it is unreasonable or cannot be supported having regard to the evidence.Particulars1.1 It was not reasonably open for the Learned Trial Judge (‘LTJ’) to be satisfied beyond reasonable doubt of guilt having regard to the inadequacy/insufficiency of evidence to establish beyond reasonable doubt that the [appellant] administered the combination of drugs causing the death of the deceased.1.1.1The LTJ has erroneously made findings of fact attributing the cause of death to the actions of the [appellant] when, on all of the evidence, it could not be excluded as a reasonable possibility that alternative hypotheses exist, namely, accident or self-administration.1.1.2 The LTJ has excluded as a reasonable possibility that the deceased intentionally administered drugs himself for pain relief, or that the [appellant] separately administered the drugs for pain relief. In doing so, the LTJ has had insufficient regard to the evidence supporting that the deceased was experiencing back pain in the days prior to his death and was seeking medical attention and drugs to alleviate that pain.1.2 The LTJ erred in finding that the prosecution established a sufficient motive to enable an inference to be drawn that the [appellant] formed an intention to kill the deceased.1.2.1 The lack of evidence of disharmony in the relationship between the [appellant] and the deceased prior to the death was not acknowledged.1.2.2 Post-death behaviours of the [appellant] in the midst of a dispute over the deceased's estate cannot in the circumstances constitute motive.1.3 The LTJ has erred in excluding the possibility of an altruistic intent for the administration of the drugs, as demonstrated in the evidence of the [appellant's] ready innocent provision of large quantities of her potentially fatal medication to other persons previous to the death of the deceased.2. The LTJ has erred by failing to bring to bear, direct herself, or otherwise to consider at all the effect of the [appellant’s] intoxication upon her capacity to form the requisite specific intent to kill (or otherwise to have regard to the [appellant’s] intoxication when considering any competing hypothesis consistent with innocence).Particulars2.1 The LTJ has failed to have regard to the evidence of Professor White and other eyewitnesses as to the effect on the [appellant] of the drugs prescribed to the [appellant] when considering whether it was proven that the [appellant’s] administration of the fatal dose of drugs to the deceased was accompanied by the requisite specific intent to kill or do grievous bodily harm.