Haines v R

[2018] NSWCCA 269

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Haines v R [2018] NSWCCA 269

Hearing dates:

26 October 2018

Decision date:

28 November 2018

Before:

Hoeben CJ at CL; Davies J; Button J

Decision:

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

 

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

 

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

 

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

 

(1)   Leave to appeal against sentence granted.

 (2)   The appeal against sentence is dismissed.

Catchwords:

CRIMINAL LAW – conviction appeal – two counts of murder – insulin administered to two elderly residents of aged care facility – applicant registered nurse working on night shift – motive and opportunity established – circumstantial case – whether defence counsel failed to follow instructions – whether Crown relied upon coincidence and propensity reasoning – whether the two murders could be properly characterised as a single transaction – whether hearing two counts of murder together gave rise to a miscarriage of justice – whether evidence in one count could be used as evidence in the other count by jury – whether evidence of admissions by applicant wrongly admitted – whether Crown’s closing address gave rise to a miscarriage of justice – whether trial judge’s summing up was unfair and unbalanced – whether guilty verdict was unreasonable and unable to be supported by the evidence – appeal dismissed – SENTENCE APPEAL –

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(2)(n)
Criminal Appeal Act 1912 (NSW) – s 5(1)
Criminal Appeal Rules – r 4
Criminal Procedure Act 1986 (NSW) – ss 21, 29(1)
Evidence Act 1995 (NSW) – ss 55, 90, 98, 100(2), 101, 104(4), 137, 189(1)(a)

Cases Cited:

Alkhair v R [2016] NSWCCA 4
AP v R [2013] NSWCCA 189
Aravena v R [2015] NSWCCA 288
Bin Sulaeman v R [2013] NSWCCA 283
BJS v R [2011] NSWCCA 239
Castle v The Queen; Bucca v The Queen [2016] HCA 46; 91 ALJR 93
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Davidson v R [2009] NSWCCA 150; 75 NSWLR 150
Em v The Queen [2007] HCA 46; 232 CLR 67
Germakian v R [2007] NSWCCA 373; 70 NSWLR 467
Golossian v R [2013] NSWCCA 311
House v The King (1936) 55 CLR 499; [1936] HCA 40
Langelaar v R [2016] NSWCCA 143
Lars et al (1994) 73 A Crim R 91
Ludlow v Metropolitan Police Commissioner [1971] AC 29
M v The Queen [1994] HCA 63;181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Mahmood v State of Western Australia [2008] HCA 1; 232 CLR 397
Matthews v R [2013] NSWCCA 187
Mulato v R [2006] NSWCCA 282
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
Nudd v R [2006] HCA 9; 80 ALJR 614
O’Leary v The King [1946] HCA 44; 73 CLR 566
R v ARS [2011] NSWCCA 266
R v Adam [1999] NSWCCA 189;106 A Crim R 510
R v Gibbs [2004] ACTSC 63; 146 A Crim R 503
R v Haines [2016] NSWSC 1824
R v Kray [1970] 1 QB 125
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304
R v Player [2000] NSWCCA 123
R v Rogerson; R v McNamara (No 54) [2016] NSWSC 654
R v Swaffield [1998] HCA 1; 192 CLR 159
R v Tedesco (2003) 85 SASR 66
R v XY [2013] NSWCCA 121; 84 NSWLR 363
Romolo v R [2018] NSWCCA 3
RPS v R [2000] HCA 3; 199 CLR 620
SKA v The Queen [2011] HCA 13; 243 CLR 400
Shepherd v The Queen [1990] HCA 56; 170 CLR 573
TKWJ v R [2002] HCA 46; 212 CLR 124
Xiao v R [2018] NSWCCA 4
Zreika v R [2012] NSWCCA 44

Category:

Principal judgment

Parties:

Megan Jean Haines – Applicant
Regina – Respondent Crown

Representation:

Counsel:
C Waterstreet – Applicant
E Balodis – Respondent Crown

  Solicitors:
Lovemore Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s):

2014/197832

Publication restriction:

Non-publication order regarding the name or any material or image identifying AB or the children of the applicant

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2016] NSWSC 1812

Date of Decision:

16 December 2016

Before:

Garling J

File Number(s):

2014/197832

JUDGMENT

1. THE COURT:

Nature of proceedings

Megan Jean Haines, the applicant, was tried between 17 October 2016 and 3 November 2016 before Garling J and a jury in the Supreme Court at Sydney on two counts of murder. Both counts were alleged to have been committed on 10 May 2014 at Ballina. The jury returned a verdict of guilty on each count.

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

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

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

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

Ground 2 – The trial miscarried insofar as the two counts of murder were alleged in the indictment and the two counts were heard together in circumstances where they should not have been as a matter of law and fairness.

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

Ground 4 – The trial miscarried insofar as the trial was conducted as if the provisions of s 98(2) of the Evidence Act applied when no such application or order was made.

Ground 5 – The trial miscarried insofar as the Crown was permitted to argue coincidence in circumstances where no leave or application to allow the coincidence rule to be used was made.

Ground 6 – The trial miscarried insofar as the trial Judge did not at any stage inform the jury that the evidence in respect of each count should be dealt with by them as distinct and separate counts and did not isolate the evidence in respect of one count from the other.

Ground 7 – The trial miscarried because the trial Judge did not inform the jury that the evidence on one count was not admissible as evidence on the other count, nor warned the jury against considering cross-admissibility of the evidence in each count.

Ground 8 – The trial miscarried because the trial Judge erred in failing to warn the jury against propensity reasoning in circumstances where two trials were heard together and the evidence in respect of each count was to be dealt with separately.

Ground 9 – The trial miscarried because the Crown did not seek leave under s 100 (Evidence Act) and accordingly the provisions of s 101 (of the same Act) were not applied by the Court.

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

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

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

Ground 13 – The trial Judge's summing up caused the trial to miscarry by failing to isolate the evidence in respect of each count separate from each other.

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

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

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

Ground 17 – The trial miscarried because the legal representatives brought improper pressure on the appellant to sign a document making admissions against the interests and the explicit instructions.

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

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

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

CROWN CASE AND FACTUAL BACKGROUND

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

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

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

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

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

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

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

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

1. High Care – Dianella wards 1 and 2.

2. High Care Dementia – Boronia ward.

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

St Andrews nursing staff comprised registered nurses (RN), endorsed enrolled nurses (EEN), assistants in nursing (AIN) and care service employees (CSE).

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

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

Medication procedures

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

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

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

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

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

Medical background of Ms Spencer and Ms Darragh

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

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

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

Complaints

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

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

“So I asked Mrs Darragh if somebody had been rude to her, and she said, yes, it was Megan. She said, “I needed some cream applied to my fanny,” and “I had my thing down” so she meant her blanket, so “I asked her to apply some cream, to which Megan said, ‘cover yourself up, you look disgusting’, switched the light out, and left”. And she said that she hadn’t seen her before or since.”

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

“So we had received, I had received a complaint via a care staff member about an allegation of rough handling, so I asked Mrs Patterson about the event that gave rise to her concern, to which she said that she had asked for assistance to use the toilet, and that she had used the toilet, and that the applicant was assisting her back to bed and did not give her sufficient time to get her feet positioned so that she could wait there, so Mrs Patterson had had a stroke, so she needed some time to get her feet in position. That the applicant had grabbed her by the transfer belt and lifted and twisted her on to the bed and that her foot, her affected foot, had caught under the cabinet beside the bed and sprained or twisted her ankle.”

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

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

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

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

“Q. Now did you go on to say something else?

A. Yes. I said to Megan that I felt it was important to come in to, um, to explain what was happening directly with her in light of her reporting requirements with APRA. I also, um, cautioned Megan and said to her that it was very important that she not raise these matters directly with any, um, of the complainants. That she shouldn’t approach them and, if she should need to attend to them at any time during the night that, she should take a care staff member or care staff employee with her so that she was not further compromised nor would the residents be further compromised by any one on one interaction. Megan said that she understood that. I said to her “Are you okay?" I said, you know, are you okay to work the shift …

Q. Yes. What did she say?

A She said she was okay.

A. I said to Megan, after, after we discussed, um, Marie and Mardi, I said “Look, I believe there is another complaint pending. Um, I was made aware of it this evening, and I will follow up and give you details of that on Monday”.

Q. You mentioned that you had some documents. Were they in a sealed envelope?

A. Yes, they were.

Q. Did you give that to the accused?

A. Yes, I did.

Q. Did you say anything about that?

A. I said: “These are the details of the complaints and the, um, details of the meeting that we'll have on Tuesday”.

Q. Now you also mentioned a reference to APRA?

A. Yes.

Q. Was there anything else said about APRA?

A. No, not to my recollection, I'm sorry.

Q. What did you understand about APRA?

A. So, Megan had had some reporting conditions associated with her practising certificate which required myself to provide reports on a 6 monthly basis to APRA. So that would be, any concerns or complaints that were raised as part of her practice. So, I felt it important, you know, to mention that to her when I met with her on that Friday night.

Q. What was said about APRA?

A. All I said to her was, I felt it was important to come in and see you in person, particularly with your reporting requirements to APRA.

Q. Now you told us that you asked her if she was okay, and she said she was. What happened after that?

A. I left.” (T.118-119)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Q. And did the applicant say “they are all stupid”?

A. Yes.

Q. Referring to the TV show?

A. Yes.

Q. And having said “they are all stupid”, did you say “why? What do you mean?”

A. Yes.

Q. And did she say words to the effect that she knew how to kill a person without being detected?

A. Yes.

Q. And did you say again words to the effect “there is no such thing”?

A. Yes, I did.

Q. And did she reply “it's easy”?

A. Yes.

Q. And did you say “what, how would you do it?”?

A. Yes.

Q. And did she say “insulin, I inject them with insulin”?

A. She did not use the word “I”, she said “yes, insulin, inject them with insulin”.

Q. Did you then ask words to the effect “why? How could that not be detected?”

A. Yes.

Q. And did she say because the body continues to metabolise the insulin so it looks like natural causes?

A. Yes.

Q. And did you say what about the injection mark?

A. Yes.

Q. And did she say “if you're good at injections it won’t even leave a mark. Besides they won't even be looking”?

A. That is correct.

Q. And in essence did the conversation end there?

A. Yeah, in essence.

Q. And did she go to the kitchen to make the tea?

A. Yes.

Q. And did you take it that what she had just told you was a common knowledge in nursing?

A. Yes I did.

Q. At the time it didn’t raise any alarm bells?

A. No.

Q. And did you assume she was talking and showing you her medical knowledge?

A. Yes.

Q. Did your relationship with the accused subsequently break up?

A. Later on, yes.” (T.717-718)

105. There was no cross-examination of AB.

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

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

108. There was no cross-examination of Dr Vuletic.

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

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

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

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

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

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

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

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

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

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

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

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

121. In re-examination, Professor Carter said:

“So it just comes with the experience. At the background of all of this is the data I’ve given you on timing but there are exceptions and sometimes, for instance, a dose of a short acting insulin might be reduced or increased to influence affect the blood glucose level and sometimes the theory of when the maximum effect of that change in insulin should take place, does not take place in practice. But overall, experience in treating people on insulin and using data such as the data I’ve just summarised, leads to a conclusion that the information I gave you before about time actions, is fairly accurate. It’s certainly not unequivocally accurate, there are exceptions, but overall that is a very good guideline.” (T.507.38)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The case for the applicant at trial

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

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

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

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

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

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

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

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

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

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

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

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

The shift 9/10 May 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Events after 10 May

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

168. The applicant denied killing the two deceased.

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

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

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

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

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

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

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

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

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

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

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

“Q. You said to [AB] words to the effect that you knew how to kill a person without being detected?

A. I can't recall the conversation, whether it happened or not.

Q. And I suggest he said words to the effect ‘there is no such thing’?

A. I don't know.

Q. And you said “it's easy”?

A. I don't know, I can't recall. It happened long ago?

HIS HONOUR: I am sorry, you talk over the witness, Mr Crown. You must let her answer the question.

Q. Miss Haines would you please keep your voice up?

A. Okay.

CROWN PROSECUTOR

Q. I suggest [AB] said “what, how would you do it?”?

A. I can't recall the conversation, the context. It happened eight, nine years ago. I don't know what was said.

Q. I suggest you said “insulin, inject them with insulin”?

A. No, I didn't say that.

Q. He said words to the effect “why? How could that not be detected?", that's right, isn't it?

A. I don't know what was said or if the conversation happened. I can't recall.

Q. And you said “because the body continues to metabolise the insulin so it looks like natural causes”?

A. I don't know, I am sorry.

Q. And he asked about the injection mark?

A. I don't know what was asked.

Q. And you said “if you're good at injections it won't even leave a mark. Besides they won't even be looking”?

A. I don't know.

Q. You see I suggest that you injected these two women with insulin because you thought it wouldn't be detected?

A. No, I didn't inject anyone.

Q. That their deaths would be taken as caused by natural causes?

A. I didn't inject anyone.

Q. I suggest your mistake was injecting two women on the same shift?

A. I didn't inject anyone.” (T941.20-942.18)

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

[120]   By contrast in Clarke v R [2015] NSWCCA 232 Basten JA stated that the reasoning in O’Donoghue should be approached with caution for a number of reasons: [2015] NSWCCA 232 at [25]-[33]. His Honour reached the following conclusion (at [34]):

“[34] In some circumstances, factual findings will themselves involve an evaluative judgment, of a kind similar to the exercise of a discretionary power. No doubt the appellate court should exercise restraint in interfering with such findings. However, if the court is satisfied that the sentencing judge made a mistake with respect to a particular factual finding, which was material to the exercise of the discretionary power, the court should identify error and then enter upon its own consideration of the appropriate sentence.”

[121]   Hamill J agreed with Basten JA whilst noting that what was said by his Honour was contrary to a substantial line of authority in this Court: at [133]-[134]. The third member of the bench, Garling J, took a contrary approach: at [97]-[99].

[122]   The applicant submitted the correct approach was that suggested by the Western Australian Court of Appeal in Greenland v State of Western Australia [2017] WASCA 83. In that case it was held that because the sentencing judge was required to be satisfied of the fact in question beyond reasonable doubt, the approach to be taken by an appellate court on a conviction appeal laid down in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-495, namely, whether the finding was reasonably open, should be adopted in considering the findings made by the sentencing judge. That approach has been held to apply in an appeal in respect of a judge alone trial: see Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12].

[123]   In reaching the conclusion of concealment in the present case, the sentencing judge was in effect drawing an inference from the agreed facts. The powers to review such a finding will depend upon the nature and scope of the particular statutory appeal for which the legislature has provided: Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13 at [40].

[124] No argument was directed to the scope of an appeal against sentence granted by s 6(3) of the Criminal Appeal Act 1912 (NSW). Further, as will appear subsequently in this judgment, the appeal can be disposed of favourably to the applicant without deciding whether O’Donoghue and the cases which followed it were wrongly decided. In these circumstances, consistent with the preponderance of authority in this Court, we propose to adopt the approach in that case in dealing with the factual challenges raised in the appeal.

[125]   In the present case there was evidence to support the sentencing judge’s findings. In relation to his personal trading, the applicant chose to use accounts which were not in his name and which were not directly linked to him. This provides a sufficient evidentiary basis in the O’Donoghue sense to justify the finding.

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

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

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

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

373. These grounds should be rejected.

Ground 23 - The trial Judge erred in making findings of fact regarding the appellant's motivation and the level of planning involved in the offending of the appellant which is not supported on the evidence to the relevant standard.

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

[36]   Although the offender was not told that Ms Spencer was the third complainant, I am satisfied beyond reasonable doubt that she inferred that the third complainant was Ms Spencer. It would not have been difficult for her so to do. After all, refusing to assist an elderly resident to the toilet constitutes a significant lack of nursing care which the offender would reasonably have

expected to give rise to a complaint. The complaints from Ms Spencer and Ms

Darragh were, properly considered, significant complaints. From a nursing

perspective, those complaints suggested that the offender had, in dereliction of her professional duty, refused to provide nursing care. This lies in contrast to the complaint from Ms Patterson, which did not concern the offender’s refusal to provide care, but the offender’s conduct in the course of providing care. I am satisfied that Ms Patterson’s complaint was, for that reason, a less significant complaint, and one which was not, in any case, supported by Ms Turner’s observation that Ms Patterson had not suffered any injury.

375. His Honour also said at [62]:

The offender’s motive to kill, namely that the victims had made complaints about her, was wholly insufficient and self-centred.

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

[53]    Finally, it is an aggravating factor if the offence is part of a planned or

organised criminal activity: s 21A(2)(n). Whilst the offences involved a degree

of planning and deliberation, they were not part of any planned or organised

criminal activity within the meaning of this provision. I do not consider this

matter to be an aggravating factor.

Mitigating Factors

[54]    It is a mitigating factor if the offence was not part of a planned or organised criminal activity: s 21A(3)(b). Whilst I have noted that the offences were not part of a planned or organised criminal activity so as to aggravate the offending, I consider the offences to have been deliberate and calculated. I do not have regard to this mitigating factor.

Submissions

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

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

Consideration

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

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

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

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

383. We would reject this ground of appeal.

Ground 24 - The sentencing process of the appellant was (sic) miscarried because legal representatives failed to present proper mitigating evidence by way of medical or personal circumstances and the impact of the extra curial aspects of punishment which were visited upon her as an effect of the sentence imposed.

Submissions

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

Consideration

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

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

6.   …My mother left my father when I was about 6 years old. I have had little contact with my father since then but attempted to renew contact with him as an adult but he made moves on me and I withdrew contact.

7.   My mother rejected me in favour of my two sisters… . My mother hated me. …My mother deliberately worked against me to undermine my happiness and wellbeing.

10.   I was not close to my sisters or anyone, but had an on and off relationship with my older sister. … We are close in that if we need each other were there (sic) but we didn’t speak to each other for 10 years at one point. I am in contact with her and she provides some emotional support.

19.   My two youngest children now reside with (AB). I have not had contact with them since he has had custody of them. My daughter has not contacted me and advised she does not want contact with me. …

20.   My oldest son is a heavy drug user and has recently been in prison in Victoria. His chaotic lifestyle has impeded regular contact but (E) has written to me in October 2016 and we love each other.

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

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

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

…I did not consider that these facts [concerning separation from her children] could amount to either extra curial punishment or were exceptional enough to constitute third party hardship such to be considered a mitigating feature on sentence.

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

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

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

The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29].

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

394. We would reject this ground.

Ground 25 - The sentences were manifestly excessive in all the circumstances.

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

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

397. His Honour then went on to say:

[90]   …In my view, the offender’s decision to administer insulin – a medication which is ordinarily meant to promote good health – in a way which was toxic and deadly and in the setting of a facility which provides care for older citizens, is conduct which is almost too awful to contemplate. It demonstrates a complete lack of respect for human life, a failure to recognise the dignity and integrity of older citizens, and a complete abrogation of the tenets of the caring profession of nursing which underpins so much good in society. It is simply conduct which cannot be tolerated and which needs to be firmly denounced and deterred.

…

[93]   I determine the appropriate sentence in each case to be one of 30 years imprisonment with a non-parole period of 22 years 6 months.

[94]    Although the offences occurred within a short time of one another, involved largely the same conduct, and were similarly motivated, I have nevertheless determined that there should not be complete concurrence between them. That is because there was some conduct directed specifically to each of the deceased. More importantly, unless some measure of accumulation is to apply, there would be no adequate or separate recognition of the value of the life of each of the deceased criminally taken by the offender. Further, no attention would be given to adequate punishment for each offence nor to the denunciation of the conduct as it related to each deceased.

[95]    In considering the extent of accumulation, it is necessary to keep in mind the common law principle of totality to which I earlier referred, namely that the ultimate sentence must be a just and appropriate one which reflects the totality of the criminal behaviour. Here, the imposition of a single aggregate sentence for both offences is the preferable means of ensuring that this principle is addressed.

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

[56]    It is a mitigating factor if the offender does not have any record (or any significant record) of previous convictions: s 21A(3)(e). The offender has a record of drug possession. It is of a minor kind and is not relevant in the

circumstances here. I take into account as a mitigating factor that the offender

does not have any significant record of previous convictions.

[57]    It is a mitigating factor if, prior to the offending, the offender was a person of good character: s 21A(3)(f). It is not possible to say that the offender was a person of good character. First, she has a record of conviction for possession of drugs; secondly, it is open to the Court to take into account the fact that in the discharge of her profession the offender was suspended by the relevant regulatory authority because her professional conduct was not satisfactory. This is a factor which goes to her character. Thirdly, her counsel did not submit that the Court should make a positive finding that the offender is a person of prior good character. Finally, the letter from Dr Jhazbhy, which I have taken into account, does not support such a finding. This is not a mitigating factor.

Submissions

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

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

Consideration

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

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

Ultimately the object of the sentencing exercise is to impose individual

sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.

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

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

405. We would reject this ground.

Orders

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

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

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

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

1. Leave to appeal against sentence granted.

2. The appeal against sentence is dismissed.

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Amendments

29 November 2018 - Par [386] amended to remove the name of a minor.

Decision last updated: 29 November 2018