R v Crickitt
[2016] NSWSC 1738
•8 December 2016
|
New South Wales |
Case Name: | R v Crickitt |
Medium Neutral Citation: | [2016] NSWSC 1738 |
Hearing Date(s): | 26, 27, 28, 31 October 2016;1, 2, 3, 4, 7, 9, 10 November 2016 |
Date of Orders: | 8 December 2016 |
Decision Date: | 8 December 2016 |
Jurisdiction: | Common Law - Criminal |
Before: | Hoeben CJ at CL |
Decision: | Accused guilty of the murder of Christine Crickitt. |
Catchwords: | CRIMINAL LAW – murder – trial by judge alone – circumstantial case – cause of death unable to be clinically established – whether circumstantial evidence established death as a result of insulin injection – verdict of guilty. |
Legislation Cited: | Criminal Procedure Act 1986 (NSW) - s 132(2) |
Cases Cited: | Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 |
Category: | Principal judgment |
Parties: | Regina |
Representation: | Counsel: |
File Number(s): | 2014/356147 |
JUDGMENT
HIS HONOUR: Brian Kenneth Crickitt (the accused) was arraigned before me on 14 October 2016 and pleaded not guilty to the following count in the indictment:
That on or about 1 January 2010 at Woodbine in the State of New South Wales he did murder Christine Crickitt.
The trial was conducted without a jury. The accused applied for an order that he be tried by judge alone. The Crown consented to the application (s 132(2) of the Criminal Procedure Act 1986 (NSW)). The trial commenced on 26 October 2016 and concluded on 10 November 2016.
Crown case
The Crown case was that the accused deliberately injected insulin into the left buttock of the deceased [his wife] on the night of 31 December 2009 or in the early morning of 1 January 2010. The Crown submitted that if the Court accepted that fundamental proposition, there could be no doubt that this was done with the intention to murder the deceased because she was not a diabetic and there was no legitimate medical reason for the accused to inject her with insulin.
The accused at the relevant time was a general practitioner at a multiple doctor practice at Campbelltown known as the “Campbelltown Medical and Dental Centre” (CMDC). For many years he had been the main medical practitioner treating the deceased and had prescribed for her numerous medications for a wide variety of medical complaints. These included a thyroid condition called “Grave’s Disease”, glaucoma, arthritis, a possible bi-polar condition, depression, asthma, blood pressure and insomnia.
The Crown accepted that it was unable to say on its case how the accused was able to inject insulin into the buttock of the deceased on the night of her death. The Crown raised two possibilities – that he lied to the deceased about some medication that he offered to her by way of a syringe administered to the buttock so that she agreed to that procedure, or that he forcibly administered the syringe to her buttock and injected her against her will.
The accused and the deceased had been in a relationship for 21 years and had been married for about 19 years. Both had left previous marriages in order to be together. Both had children from their previous marriages, but no children from this marriage. The deceased had three adult children and the accused one.
For some years before the deceased’s death, they lived together at Clontarf Close, Woodbine (near Campbelltown). It was the Crown case that for some time before her death, the marriage was in difficulty and the accused was unhappy in the marriage. The deceased would on occasions be very abusive to the accused, particularly if she had had too much to drink. Despite this deterioration in the relationship, they remained together.
In his interviews with police, the accused said that things had been difficult between him and the deceased, that he had been very unhappy in his marriage and that he was undecided whether to stay or go. He said that he had frequently wanted to leave and that he had previously left for a couple of days. It was the Crown case that for months before her death, the deceased had become convinced that the accused was no longer intending to stay in their marriage and that he was having an affair. He began staying out at night, purportedly at work, and there were some nights when he did not come home at all. There had been periods of several days when the deceased had been unable to contact the accused.
When questioned by the deceased, the accused denied having any outside romantic interests and insisted that he was committed to the marriage. The reality was that the accused was in a relationship with Ms Linda Livermore. Some weeks before the deceased’s death the relationship between the accused and Ms Livermore had become a sexual one and he was spending more and more time with her at her home. Shortly before the death of the deceased, the accused had raised with Ms Livermore the possibility of them getting married and she had responded positively to this suggestion.
The Crown accepted that on some occasions the deceased had indicated that if the accused left the marriage she would commit suicide. It was the Crown case that this was an idle threat and that at no stage did she have any serious intention of doing so. The Crown noted that not long before her death, the deceased had made plans to visit and spend time with members of her family. She was said to be looking forward to these activities.
The Crown submitted that at the time of the deceased’s death, the accused and Ms Livermore were planning their future lives together. The accused and the deceased had some property in common and were both involved in several family companies which held investments. The deceased had a life insurance policy, with the accused as a beneficiary, in the amount of about $568,000. On the Crown case the accused was motivated to murder the deceased so that he could be with Ms Livermore and gain the financial benefits referred to. It was the Crown case that the accused resented the deceased’s dismissive and caustic treatment of him and wished to terminate the marriage so that he could commence a marriage with Ms Livermore.
The Crown submitted that the death of the deceased was planned by the accused. The Crown submitted that at about 1.30am on Wednesday, 30 December 2009, i.e. approximately 48 hours before the deceased’s death, the accused did a Google search on his home computer directed to symptoms of an insulin overdose. He went to a website known as “diabetes.emedtv.com”. That website described the symptoms of an insulin overdose as a result of the injection of the rapid action type of insulin. At about 8.30pm on the same day, the accused did a search of the same website and brought up the web page of an organisation known as “Critical Care”. This web page contained a lengthy article devoted to the topic “intentional overdose with insulin”. It contained an academic analysis of 25 patients who had intentionally overdosed or been overdosed with insulin and who had been admitted to a hospital in Paris. The article discussed the amounts of insulin that each had been injected with, the amount of time that had elapsed before each received medical treatment and the outcome for each patient which ranged from a complete recovery to death.
It was the Crown case that rapid acting insulin caused a dramatic drop in blood glucose levels which in turn caused sweating, dizziness, shakiness, blurred vision, irritability, loss of co-ordination, difficulty speaking, confusion and after some time, seizures, loss of consciousness, coma and could cause death. The rapidity of symptoms including death depended on a number of factors including the size, age and general health of the patient, the amount of insulin injected and the interaction of insulin with any drugs taken by the patient, including interaction with alcohol. The effect was not instantaneous but some effects would become apparent within 15 to 20 minutes. Death, if it eventuated, would take a number of hours. During that time the patient would be extremely confused, unco-ordinated and unable to function including being unable to get help for themselves.
It was the Crown case that the accused was rostered to work at the CMDC on 31 December 2009 from 10am to 8pm. At 3.12pm he saw a patient named Kristina Mitchell who was a diabetic. Mrs Mitchell saw the accused in order to pick up a number of prescriptions for a variety of conditions. Mrs Mitchell used both the slow acting and fast acting varieties of insulin. The slow acting variety is known as “Lantus SoloSTAR”. The fast acting variety is known as “NovoRapid”.
One the of the drugs that was prescribed for Mrs Mitchell by the accused when she attended on that day was Lantus SoloSTAR. It was the Crown case that Mrs Mitchell had previously been given a prescription for NovoRapid by a specialist endocrinologist, Dr Borkman, which she had filled on 25 November so that in late December 2009 she still had a plentiful supply of it. The prescription for NovoRapid provided by Dr Borkman would normally last between four and five months.
The CMDC had a computer system known as “MedTech32”. All prescriptions and medical notes were recorded on this system. Each doctor in the CMDC had a unique username and password and there was an office policy that usernames and passwords were not to be shared. The accused’s username was “BRC” (his initials).
Two prescriptions were made out by the accused for Mrs Mitchell, including one for the slow acting insulin, Lantus SoloSTAR. Those prescriptions were entered onto the MedTech32 system. After leaving the CMDC Mrs Mitchell attended the Priceline Pharmacy at Macarthur Square at 3.36pm and had those prescriptions filled. This included the prescription for the slow acting insulin. Mrs Mitchell signed with her usual signature for the two prescriptions that she presented.
It was the Crown case that at about 5pm, approximately an hour and three quarters after the accused had seen Mrs Mitchell, he accessed the CMDC MedTech32 system using his username and added a prescription to the records for Mrs Mitchell for the fast acting insulin, NovoRapid FlexPen. NovoRapid FlexPen comprised a disposable syringe with a fast acting solution of insulin for injection. The insulin came in a box of five pens and the prescription was for five boxes, i.e. a total of 25 pens. Each pen contained 300 units of insulin. Up to 60 units could be dispensed at any one time by utilising the mechanism in the pen.
It was the Crown case that the accused entered this prescription in the MedTech32 system, printed the prescription and then immediately deactivated it. This had the effect of removing the prescription from the records of Mrs Mitchell at the CMDC. The MedTech32 program recorded the removal of a prescription but required the doctor removing it to insert a reason for the deactivation. The Crown submitted that in this case the accused typed in the word “wrong” as the reason. One minute later he reactivated the prescription and then immediately deactivated it again. On this occasion he changed the reason for the deactivation from “wrong” to “not needed”.
The Crown case was that the accused’s only reason for printing this prescription for the fast acting variety of insulin in the name of Mrs Mitchell was so that he could obtain a large amount of insulin with which to inject the deceased with a fatal dose in a way that he thought would not be able to be detected.
It was the Crown case that NovoRapid was a very quick acting insulin which started working within five to fifteen minutes after injection. It had a peak effect at somewhere between 45 and 75 minutes and a duration of action of two to four hours. The Crown case was that the accused’s reason for deactivating the prescription was to hide the fact that he had issued a prescription for the fast acting variety of insulin that afternoon because he knew that he was going to use that insulin to murder his wife later that night.
The Crown case was that having printed the prescription for the fast acting variety of insulin at approximately 5pm, the accused presented that prescription between 6pm and 7pm at the CMDC pharmacy. The pharmacist on duty did not recall who she dispensed the prescription to but said it was not uncommon for doctors to present prescriptions, either for themselves, family members or for patients. The accused regularly attended the pharmacy for the purpose of obtaining medication for the deceased.
When a prescription for this medication was filled, the patient or agent was required to sign it. The Crown case was that not only did the accused sign the prescription as the treating doctor but he also signed it as the agent of the patient when the prescription was filled. It was the Crown case that having prepared this false prescription for the fast acting insulin in the name of Mrs Mitchell and having filled it at the CMDC pharmacy, the accused took the insulin home with him that night and used it to murder the deceased.
It was the Crown’s case that what happened at their home in Clontarf Close, Woodbine that night was substantially dependent upon two accounts provided by the accused to police in two interviews which took place on 1 January 2010.
A download of the deceased’s telephone records revealed that in the weeks before her death, she had been regularly texting the accused while he was at work and repeatedly asking him where he was, when he would be home, whether she could see him during the day and instructing him as to what medications and other things she wanted him to bring home. On the evening of 31 December 2009 the pattern of texts between them was no different.
At 5.20pm the deceased texted the accused and asked how it was going and whether he would be able to come home early. The accused texted back at 5.47pm: “On track so far for a timely lift off”. At 6.14pm the deceased texted the accused “What time is early? Shall I put the steaks on now?”. The accused texted back that he planned to leave at 7 to 7.30pm. At 7.28pm the deceased texted the accused and said “Are you coming early”. The accused texted back at 7.36pm to say that he was waiting for the last patient to come and was then leaving. It was common ground that the accused had taken time off that afternoon to meet Ms Livermore.
In his first interview with the police on 1 January 2010 the accused said that he arrived home after leaving work at about 8pm. He and the deceased had dinner and watched a movie. The accused said that the deceased appeared to have been drinking and that her speech was a little slurred. At about 10.30pm they went to bed and commenced arguing about their relationship. He said that the deceased again accused him of having an affair which he denied. They continued arguing for an hour or so and then he dozed off in their bed.
The accused said that he woke at about 1am, made a cup of tea and that the deceased started arguing with him again, getting angry and shouting at him. She kept saying "You can't leave me, you've got to promise me you'll stay here." The accused said that he told the deceased "I'm not planning on going anywhere." When the deceased accused him of having an affair, he responded "No. You know, I am here. I don't have anyone else. I'm at work because I have to be at work. You know, I have so many hours.”
In the first interview, which commenced at 9.53am, the accused said that after this argument with the deceased, he left the house at about 2am intending that he would be gone for a couple of hours and thinking to himself "Why should I stay there?" He put a few items of clothing in a bag in case he did not come back that night. He told police that he thought "I might want to stay out for a day or something, but I didn't. I came back, you know.” When asked where he had gone when he left the house at 2am, the accused said that he had driven into Campbelltown, stopped his car next to a park where he parked, thought and slept for a little while. The accused said that he had gone for a drive to Narellan, the Camden Bypass, Razorback and Picton.
It was the Crown case that the accused telephoned Ms Livermore from his home before 2am and drove straight to her home which was at Leumeah. He spent the rest of the night with her.
In his first interview, the accused told the police that when he left home, the deceased was still in their bed. He said that when he returned home at about 8.15am, the house was quiet, except for the cat, which he fed. He said that he looked into their bedroom, but could not see the deceased in bed, so he thought that she must be up and about somewhere. It was only later when he looked properly into the bedroom, that he saw her lying on the floor. The accused said that he "sort of touched her and shook her a bit. She was cold. I just sort of shook her a bit more but, no, she was dead". It was then that he rang the police.
The Crown case was that having arrived at his home at about 8.15am, the accused made three phone calls to Ms Livermore and then she called him back from her home phone at 8.32am. It was only after those four phone calls that the accused at 8.44am first called triple-0 to report that his wife was dead.
It was not until the accused’s second police interview, which commenced at 9.48pm that he admitted that he had lied to them in his first interview and that he had gone to Ms Livermore’s home. The Crown case was that the accused’s motivation for making these admissions was that he knew the police had interviewed Ms Livermore and that she had told them that he had been to her place that night and that they were in a sexual relationship.
The accused told police in the second interview that he had been in a sexual relationship with Ms Livermore for some weeks, that he had spoken with Ms Livermore about leaving his wife and that they had talked about being together in the future.
The accused told police that Ms Livermore had said that he could stay at her place for a few days until he found somewhere to live. He told police that his idea was: “I could get somewhere, sort out Chris, divorce her and we could hopefully get together in whatever relationship (being him and Ms Livermore”). The accused said “I would be very happy to be honest”. He said that when he left his home he took a suitcase with a change of clothes to Ms Livermore’s place and that he had spent the rest of the night at her home. He said that on the afternoon of 31 December, he had met Ms Livermore at the Campbelltown Mall and made an arrangement to go to her house at some stage that night. He said that during the previous few weeks, he had spent most nights at her place. He said that there were romantic feelings between them. He said that he had rung Ms Livermore from his home at about 1.30am before going to her place the previous night.
The accused told police that he believed that his wife was unaware of the existence of Ms Livermore, even though she was continually accusing him of seeing someone else. He told police that for several months he had been depressed and had been taking an antidepressant drug.
The Crown case was that at some time during the night of 31 December 2009, the accused injected his wife in her left buttock with a lethal dose of insulin with the intention of murdering her. The Crown submitted that he remained at the home until she was either dead or in a comatose or semi-comatose state so that without medical intervention she would inevitably die and only then left his home at around 2am to spend the night with Ms Livermore.
The Crown submitted that it was more likely that the accused had decanted insulin from one or more of the NovoRapid FlexPens into another syringe. The Crown submitted that the accused knew when he arrived home at about 8.15am on 1 January that his wife was deceased and that he used the time between his arrival and ringing the police to ensure that there was nothing at his home that might make the police concerned about the deceased’s death. The Crown submitted that the accused knew that it was likely that the police would attend and investigate the circumstances of the deceased’s death. The Crown submitted that the accused deliberately did not move the deceased from the position in which he found her because he knew that she was dead and did not want to move the body in a way which might suggest that he had been involved in her death. The Crown case was that the delay of about 30 minutes before the accused rang the police was not due to him being ignorant of where the deceased was but because he knew that she was dead.
When the deceased’s body was inspected by police, it was in an unusual position with her head wedged firmly between her side of the bed and the bedside table next to it. This was a very narrow space. It was the Crown case that the deceased’s position was consistent with her having attempted to get up from the bed but affected by the very low glucose levels brought about by the insulin, she had collapsed and fallen between the bed and the bedside table.
The Crown relied upon the observations of police officers that there was no sign that the other side of the bed (i.e. the accused’s side) had been slept in. The Crown also relied upon the observations of police that the carpet in the lounge-room appeared to have been recently vacuumed because the pile of the carpet was upright and no other part of the house showed signs of having been recently vacuumed.
After the first police interview, the accused was taken back to his home and was present while police searched it. During the course of the search, he identified an Apple Mac PC on a desk as his computer. Three days later on 4 January, the police seized the computer and it was the Crown case that it was on this computer that the accused had made the internet searches about insulin to which reference has been made.
The Crown submitted that in order for exogenous (i.e. from outside the body) insulin to be detected, the blood of the deceased must be extracted soon after death and then must be specially treated by having the serum separated from the plasma so that the serum can be tested. The Crown submitted that the accused was aware of this and deliberately chose New Years Eve to murder his wife knowing that it was highly unlikely that an autopsy would be conducted on the deceased on New Years Day. In fact the autopsy was not conducted until 2 January. The Crown submitted that by that time, any chance of insulin being detected in the blood of the deceased was lost.
It was common ground that the procedures for testing the deceased’s blood for insulin were not followed. The blood was refrigerated in its whole condition rather than being separated into serum and plasma and as a result, no adequate testing could be done on the deceased’s blood. When Dr Irvine, a forensic pathologist, conducted the autopsy on 2 January she was unable to ascertain the cause of death. The heart, lungs, circulatory system, brain and every organ in the deceased’s body appeared to be normal.
Toxicology tests of the deceased were done which disclosed therapeutic levels of various drugs, including Ativan, the chemical name of which is Lorazepam. Lorazepam is a benzodiazepine often prescribed as a sleeping or sedative tablet. No alcohol was detected in the deceased.
Dr Irvine found a number of peri mortem injuries (i.e. injuries sustained close to the time of death). It was the Crown case that those peri mortem injuries were consistent with the forceful administration of an injection of insulin. These injuries were: three ovoid-shaped bruise marks on the back of the deceased's right arm, a mark on the back of her head, a bruise on the breast and two areas of bruising on the deceased’s left buttock. In addition one of the deceased’s acrylic fingernails was broken.
It was the Crown case that Dr Irvine did not conduct any further investigation into the bruises on the left buttock because at the time she did not appreciate the possibility that those bruises might have been caused by the administration of a syringe. It was the Crown case that some considerable time later in December 2010, a police officer brought post mortem photographs to her and pointed out that one of them showed a distinct small red mark near the centre of one of the bruises on the buttock. It was the Crown case that this mark indicated where and how insulin had been administered by the accused to the deceased.
The Crown relied upon a number of events which occurred after the deceased’s death as indicating a consciousness of guilt on his part. The Crown relied on what it asserted was the accused’s insistence that the deceased be cremated, even though that was against the wishes of her family.
The Crown relied upon a change which was made to the CMDC medical records of Mrs Mitchell on 24 November 2011. The background to this change was that the inquest into the death of the deceased commenced 16 May and continued to 19 May 2011. It resumed on 5 December and concluded on 8 December 2011. During the adjournment, police subpoenaed the medical records of Mrs Mitchell from the CMDC. The records were printed out by the CMDC on 13 October 2011 and did not contain the entry for NovoRapid prescribed by the accused for Mrs Mitchell on 31 December 2009. It was the Crown case that the accused learned of these inquiries and appreciated how suspicious it looked that the prescription for NovoRapid had been deactivated by him. On 24 November 2011 the accused logged into the CMDC MedTech32 system, using his login and password, gained access to the patient records for Mrs Mitchell and reactivated the 31 December 2009 prescription for NovoRapid.
It was the Crown case that the accused reactivated the prescription while the coronial inquest was continuing to try to avoid being caught out as having hidden the 31 December 2009 prescription for NovoRapid. It was the Crown case that this was evidence of consciousness of guilt.
The Crown relied upon a number of lawfully recorded conversations between the accused and his wife, Julie Crickitt, in October 2014 in which he was heard to say that the police had fabricated evidence against him, including tampering with the autopsy photos and fabricating entries on the computer records of the CMDC. It was the Crown case that this amounted to a deliberate lie to his wife (Julie Crickitt) and that these false assertions amounted to evidence of a consciousness of guilt on the accused’s part.
The defence case
The defence submitted that the central fact in issue was the cause of death of the deceased. The defence submitted that the Crown had failed to prove beyond reasonable doubt that an injection of insulin was the cause of the death of the deceased and had failed to prove that insulin was in any way involved in her death.
The defence submitted that a reasonable scenario consistent with the innocence of the accused was that the deceased died as a result of positional asphyxiation. The defence submitted that the Crown had failed to exclude that condition as a cause of the deceased’s death.
In support of that proposition, the defence submitted that the effect of the evidence from a range of medical experts in various specialities was that there was no evidence to establish that an insulin overdose was the cause of the death of the deceased or that insulin was involved as a contributing factor in her death. The defence submitted that, taking the medical evidence at its highest, it went no further than to leave open the possibility that insulin was involved.
The defence submitted that financial gain was not a cogent or persuasive motive for the accused to take the extreme step of killing the deceased. It submitted that the financial benefits were modest, comprising as they did the insurance policy and the small amount of assets which the accused and the deceased shared.
The defence accepted that the accused was having an affair with Ms Livermore and that he had attended her home in the early hours of morning of the day of the death of the deceased. The defence case was that the circumstance that the accused was having an affair with Ms Livermore was not such as to place him under such pressure as to provide a compelling reason for him to kill the deceased. There was no apparent reason why he would simply not leave his wife so that they could separate and divorce. They had no children together and had both been previously married. They had both left their respective spouses before and there was simply no reason why the existence of the affair provided the accused with a motive to kill the deceased.
The defence submitted that the explanation for the lies initially told by the accused to the police was readily apparent and was clear from what the accused said during the second interview. In the particular circumstances in which he found himself he was embarrassed to tell strangers about the fact of the affair and that this provided a complete explanation for his conduct other than a consciousness of guilt. The defence submitted that apart from those obvious lies, there was nothing to suggest that what the accused told the police was anything but the truth as to his movements on the night that the deceased died.
The defence submitted that the text message exchanges between the accused and the deceased on the evening of 31 December 2009 were consistent with the account which the accused provided to police concerning those events. The defence noted that the tone of the texts on both sides was cordial and did not suggest any pre-existing or current ill feeling between them.
The defence submitted that the accused’s account of his movements on returning to the marital home the following morning were reasonable and not consistent with a consciousness of guilt. On the contrary, putting out the rubbish and feeding the cat and otherwise performing domestic duties was inconsistent with him having murdered the deceased. The defence submitted that there was nothing in the accused’s account to the police concerning the events following his return home on New Years Day which had been shown to be false.
The defence accepted that there was evidence that an internet search was conducted on a computer within the family home for information regarding an insulin overdose and an article regarding intentional overdose with insulin. The defence submitted that the Crown could not exclude the reasonable possibility that given the nature of his profession, the accused may have had some occasion to research the effect of insulin for innocent purposes. He had no reason to think about these events until well after the death of the deceased. The defence noted that there was no evidence of the context in which these documents were accessed by the accused.
By way of further response, the defence submitted that had the accused as the Crown asserted, sought to ensure that there was nothing suspicious that the police might find in his home he would have removed the search history from the browser on the computer or removed the computer altogether. The defence noted that it was not until 4 January 2010 that the police seized the computer.
The defence submitted that the absence of alcohol in the deceased’s blood at the time of autopsy was not inconsistent with the accused’s statements to the police. The effect of the medical evidence was that alcohol within the blood would have metabolised by the time the sample was taken at autopsy. The defence submitted that there was evidence from Mrs Cheryl Ball, a friend of both the deceased and the accused, that the deceased had in fact been drinking on New Years Eve.
The defence submitted that the issuing of a prescription of NovoRapid insulin to Mrs Mitchell at the CMDC on 31 December 2009 did not assist the Crown case. There was no issue that Mrs Mitchell attended the CMDC on that day. The defence noted that it was not in issue that the accused would attend the CMDC pharmacy from time to time to collect medication for himself and others including the deceased. The defence noted that sometimes patients including Mrs Mitchell would attend the very same pharmacy to collect medication for themselves. It was the defence case that while patients of the CMDC would normally obtain prescriptions from doctors during a consultation, on occasions patients would obtain a prescription by ringing the doctor, having the prescription left at reception and then collecting it and attending the CMDC pharmacy to have it filled.
The defence submitted that an examination of the prescriptions for fast acting insulin which Mrs Mitchell had filled in 2009/2010 made it clear that had she not filled the prescription for NovoRapid, made out in her name by the accused on 31 December 2009, she would not have had enough insulin to meet her needs as prescribed by Dr Borkman. The defence submitted this was strong evidence supporting the proposition that in some way unknown, Mrs Mitchell had filled out the prescription for NovoRapid on the evening of 31 December 2009.
In relation to the Crown’s reliance upon the accused’s use of the MedTech software during the coronial inquiry, the defence submitted that it was not in dispute that he used the MedTech software in relation to the prescription issued to Mrs Mitchell. It was not in dispute that in connection with that prescription, the MedTech software recorded that it had been activated and deactivated at times. It was the defence submission that it was not known why the NovoRapid prescription of 31 December 2009 had been activated on 24 November 2011. In that regard, the defence noted that there was evidence that deactivation and activation of a prescription could occur on the MedTech system unintentionally. It was the defence submission that the reason why that activity was recorded on the software is not known by the accused and that it was clear that other doctors who treated Mrs Mitchell had deactivated her prescriptions in the past for a reason not known to the accused. It was the defence case that the activation and deactivation of the prescription does not reflect any deliberate conduct on the part of the accused such as would reveal a consciousness of guilt.
Directions
In order to prove the charge of murder, it is necessary for the Crown to establish beyond reasonable doubt that a deliberate act of the accused caused the death of the deceased and that such act was carried out with an intention to either kill or cause really serious bodily harm. The deliberate act which the Crown relies upon is the injection of insulin and the intention the Crown asserts is that the accused intended to cause death. The assertion that insulin was involved in the deceased’s death needs to be proved beyond reasonable doubt.
It was agreed by the parties that there was a further indispensable fact which the Crown would have to prove beyond a reasonable doubt for the accused to be convicted. The indispensable fact was:
“That the accused improperly obtained a supply of insulin on 31 December 2009 otherwise than in the normal course of his work as a medical practitioner by means of the Kristina Mitchell NovoRapid prescription.”
I find that this is an indispensable fact which the Crown had to prove beyond reasonable doubt for the accused to be convicted. Without proof of that fact there is little to connect insulin to the death of the deceased.
The Crown does not rely upon any direct evidence that establishes that the accused injected the deceased with insulin. Its case is purely circumstantial.
The High Court recently summarised the correct approach to be taken in circumstantial evidence cases in The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013:
“46 The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen [1975] HCA 42 at 104; 133 CLR 82 at [104]; Gibbs, Stephen and Mason JJ said:
"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen."
47 For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.”
In Lane v R [2013] NSWCCA 317; 241 A Crim R 321 the Court of Criminal Appeal (Bathurst CJ, Simpson and Adamson JJ) spoke of the “very real” distinction between drawing an inference from proven facts and engaging in speculation”.
“109 In Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262, Spigelman CJ considered this very question. He acknowledged that it is often difficult to distinguish between permissible inference and conjecture. Quoting from Jones v Great Western Railway Co (1930) 144 LT 194, his Honour adopted a definition of inference as "a deduction from the evidence" which, if reasonable, may have the validity of legal proof.
110 He referred also to Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, quoting as follows:
"Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture."
Spigelman CJ stated the test as:
"... whether, on the basis of the primary facts, it is reasonable to draw the inference."
To similar effect were observations of Gibbs, Stephen and Mason JJ in Barca v The Queen [1975] HCA 42; 133 CLR 82 at 104-105.”
Bearing in mind that the Crown case is a circumstantial one based on inferences said to be able to be drawn from a large number of alleged facts, I note that my analysis should not focus on each individual fact but rather their combined force (The Queen v Hillier [2007] HCA 13 at [46]; 228 CLR 618). Other than those facts which I have identified, I need not be satisfied of any particular fact beyond reasonable doubt. It is the elements of the offence and the question of whether the accused improperly obtained a supply of insulin on 31 December 2009 which require proof to that standard (Shepherd v The Queen [1990] HCA 56;170 CLR 573).
Because the Crown case is a circumstantial one, before I could return a verdict of guilty of murder I would need to be satisfied beyond reasonable doubt that no rational hypothesis other than guilt of the offence charged is available on the facts that I find established (Plomp v The Queen [1963] HCA 44; 110 CLR 234; Peacock v The King [1911] HCA 66; 13 CLR 619).
In addition to the above, I have taken into account the following matters of law. By that I mean that if this had been a trial by jury, I would have directed the jury as follows.
It is incumbent upon the Crown to prove each and every element of the offence beyond reasonable doubt. The accused needs to do nothing and prove nothing (Woolmington v Director of Public Prosecutions (1935) AC 462).
The criminal standard of proof is not to be further defined (Green v The Queen [1971] HCA 55; 126 CLR 28).
The act causing death must have been a willed and conscious act (Ryan v The Queen [1967] HCA 2; 121 CLR 205 and Penza and Di Maria v R [2013] NSWCCA 21).
In relation to the evidence identified by the Crown as demonstrating a consciousness of guilt of murder on the part of the accused, I have borne in mind the legal principle that, in order to accept that line of reasoning, I would need to be satisfied that that act was indeed done by the accused; that the act was done to conceal something material to the trial, not something insignificant; and that the act was done by the accused in order to conceal his guilt of the murder of the deceased, as opposed to any other crime or for any other reason (Edwards v R [1993] HCA 63; 178 CLR 193; R v Cook [2004] NSWCCA 52).
On that issue I would also need to keep carefully in mind that persons may seek to conceal things for many reasons, not just because they are guilty of a crime; that an act done because of an awareness of guilt certainly cannot prove guilt on its own; and that, even if I accept that adjustments were made through the MedTech32 system to Mrs Mitchell’s medical records, and that it was done with a consciousness of guilt, that act just becomes another circumstance that I would take into account in this circumstantial case.
In Edwards the plurality said at [14]:
“14 … And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of "a realisation of guilt and a fear of the truth".
15 Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a
deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.”
I have kept these principles in mind when considering those matters which the Crown has asserted are indicative of a consciousness of guilt on the part of the accused.
I have also kept in mind that post-offence conduct may also support consciousness of guilt reasoning. In Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270 Latham J said:
“6 … before any post offence conduct can … qualify (as a legitimate indicia of a consciousness of guilt), it must bear a particular character. It must be capable of constituting an admission against interest. It must be capable of meeting the conditions analogous to those discussed in Edwards v The Queen (1993) 178 CLR 193 applying to lies. The relevant conduct must be precisely identified and proved by evidence, it must be concerned with some circumstance or event connected with the offence and it must be carried out in circumstances in which the explanation for the conduct is a realisation of guilt on the part of the accused.”
The fact that the accused did not give evidence in the trial means nothing and is not to be held against him by me in any way (RPS v The Queen [2000] HCA 3; 199 CLR 620; Azzopardi v The Queen [2001] HCA 25; 205 CLR 50).
Expert evidence was admitted in the trial on the basis that the relevant witnesses had knowledge, training or experience that permitted them to give such evidence (s 79 Evidence Act 1995 (NSW)). Having said that, the assessment of the correctness and probative value of those opinions remains a matter for me as the tribunal of fact. Merely because an expert has expressed an opinion by no means demonstrates that the opinion is indeed correct and must be accepted.
Finally, I must exercise caution about hearsay evidence for the simple reason that by its nature the person who made that statement relied upon for its truth cannot be cross-examined and hearsay evidence is generally unable to be tested deeply - s 165(1)(a) Evidence Act.
REVIEW OF THE EVIDENCE
Admissions by Accused
Exhibit 3 comprised a Statement of Admissions pursuant to s 184 of the Evidence Act. I am satisfied that the accused made these admissions after receiving advice from his counsel and solicitor and that he understood the consequences of making the admissions.
The admissions were:
“General
1. Brian Crickitt ('the accused') and Christine Crickitt ('the deceased') married in March 1991.
2. The deceased died on or about 1 January 2010.
3. The accused and the deceased resided together at 2 Clontarf Close, Woodbine at the time of the death of the deceased.
4. The accused was at all relevant times a doctor of medicine in general practice.
Campbelltown Medical and Dental Centre (CMDC)
5. The accused was working at the CMDC from January 2006 until after the death of the deceased.
6. The hours and days that the accused worked at the CMDC were rostered. The accused was rostered to work at the CMDC on 31 December 2009 between 10am and 8pm.
7. The accused had his own consultation room at the CMDC. The accused had a key to the room. Occasionally, doctors would use other doctors' rooms.
8. The usual practice at CMDC was that patients entered a queue on arrival for consultations with a doctor.
9. Patient records at the CMDC were maintained and managed on a computer system known as MedTech32.
10. MedTech32 had both clinical and accounting or financial functions.
11. Each doctor at the CMDC had a computer in his or her consultation room.
12. Each doctor had a confidential username/login and password for the computer. CMDC policy was not to share or allow others to use a username/log-in and password.
13. Patient files were accessed by employees and doctors on the computer by use of the username/log-in and password.
14. Doctors at CMDC generated prescriptions for patients on the computer using Medtech32.
15. Medtech32 recorded changes and additions made to the database if used to access a patient file according to a particular log-in.
The NovoRapid prescription on 31 December 2009
16. The accused treated a patient, Kristina Mitchell, at the CMDC at approximately 3:12 PM on 31 December 2009.
17. The accused treated a patient, Brett Jackson, at the CMDC at approximately 4:58 PM on 31 December 2009.
18. At 5:01 PM on 31 December 2009 the accused issued a prescription to Kristina Mitchell for NovoRapid FlexPen 3ml (5 x 5) ('the NovoRapid prescription') and signed that prescription in the 'Doctor' field.
19. The NovoRapid prescription was subsequently filled by Evon Binyamin at the CMDC pharmacy.
20. It is not disputed that the signature in the 'Patient/agent' field of the prescription is that of the accused. The similarities between the specimen signatures examined by Melanie Holt and the signature appearing in the 'Patient/agent' field of the NovoRapid prescription indicate that it is highly probable that the accused is the signatory.
Medications at the home
21. The accused was acting as the treating medical practitioner of the deceased preceding her death.
22. A number of general practitioners, including the accused, and specialist doctors, had treated the deceased for a variety of complaints during her marriage to the accused.
23. The accused prescribed the deceased a number of medications during their marriage. A number of these medications were initially prescribed by specialists or other general practitioners and subsequently by the accused.
24. As at 1 January 2010, the accused prescribed the following medications to the deceased:
• Oroxine, 100mg per day.
• Deralin, 40mg twice per day.
• Lexapro, 10mg per day.
• Zyprexa, 10mg per day.
• Mobic, 15mg per day.
25. The accused collected medications prescribed to the deceased from the CMDC pharmacy.
26. The deceased was not a diabetic.
27. A packet of Ativan 1 mg 50 tablets was found by police in a drawer of the vanity in the ensuite bathroom attached to the deceased's and accused's bedroom. Ativan is the tablet form of the drug Lorazepam.
28. The Ativan tablets had a label on the box indicating that they had been prescribed for Elizabeth Razmovski by Dr Rifaat Girgis, a doctor at the CMDC.
29. Ms Razmovski was a patient at the Campbelltown Medical and Dental Centre, and saw numerous doctors at that practice, including Dr Girgis and the accused.
30. On 18 March 2008, 30 April 2008 and 13 April 2009, Dr Girgis prescribed Ms Razmovski Ativan tablets 1mg (50 tablets).
31. On 20 April 2009, Ms Razmovski had a consultation with the accused at CMDC.
Financial
32. In around 1995 the accused and deceased bought a property at 2 Clontarf Close, Woodbine ('the Woodbine property') for approximately $246,500.
33. In around 2000, the accused and the deceased bought a property at 70 Woodhouse Drive, Ambervale ('the Ambervale property') for $175,000. They ran a medical practice from the Ambervale property until 2006 when the accused commenced employment at the CMDC. The accused and deceased sold the Ambervale property sometime 2009 for approximately $320,000.
34. As at 1 January 2010 the accused and the deceased owned the following property:
• The Woodbine property, subject to a mortgage with Bankwest (account 100-155763-0), with $283,293.45 owing as at 28 January 2010.
• 47 Lawn Avenue, Bradbury, owned by Crickitt Investments Pty Ltd as Trustee of 'the Divine Trust', subject to a mortgage with ING (account 23114659) with $214,633.11 owing as at 31 December 2009. As at 20 June 2010, the Financial accounts of the Divine Trust recorded the value of the property as $265,383.95.
35. In the financial year ending 31 June 2010, the accused had declared income of $98,730 with the deceased declared income being $45,886. The accused was also the Executive Director of Brian Crickitt Pty Ltd which was paid revenue, after expenses, of $247,137.07 from Primary Health, as a result of the accused work at the CMDC.
36. In addition to owning the property at Bradbury, Crickitt Investments Pty Ltd as Trustee of 'the Divine Trust' also owned various shares and managed funds. The Divine Trust was a discretionary trust, with the accused and deceased as beneficiaries. In 2009, the trust had total current assets recorded on a costs basis of $71,927.92, which included $67,462,57 in shares and $4,465.35 in cash. As at 31 December 2009, the market value of these shares was $99,473.73. By 2010, the amount was $72,387.86 in total current assets, comprising $68,334.46 in shares and $4,053.40 in cash.
37. The accused self-managed both his and the deceased's superannuation fund. The money in the fund was invested in various shares and managed investments as recommended by their financial advisor at the time. The net assets of the fund as at 30 June 2009 were $179,785.30 and $202,280.05 as at 30 June 2010.
Insurance
38. A life insurance policy in respect of the deceased (policy number 8207411) was taken out with Aviva in or about March 2005.
39. At the time of the deceased's death, the deceased had a life insurance policy with Aviva. That policy insured the deceased in the event of her death for a lump sum of $568,230 as at 22 March 2009.
40. The accused was the beneficiary of the life insurance policy in the event of the death of the deceased.
41. A life insurance police in respect of the accused (policy number 1330123) was taken out with Aviva in around 2005. That policy insured the accused in the event of his death in the sum of $876,729 as at 8 September 2008.
The deceased was the beneficiary of the life insurance policy in the event of the death of the accused.
42. The value of each policy increased automatically each year by virtue of the policy.
43. The accused treated a patient, Kristina Mitchell, at the Campbelltown Medical Centre at approximately 3pm on 31 December 2009.
Telephone records
44. At all relevant times the number of the home telephone service of the accused and the deceased was 4620 9759.
45. At all relevant times the number of the mobile telephone service of the accused was 0421 040 824.
46. At all relevant times the number of the mobile telephone service of the deceased was 0414 604 068.
47. At all relevant times the number of the mobile telephone service of Linda Livermore was 0451 147 128.
Internet
48. As at December 2009, the accused had a personal email address
Fingerprints
49. Three original scripts (the Novorapid script, Lantus Solostar script, and
Mogodon, Colgout and Asmol script) prescribed for the patient Kristina Mitchell on 31 December 2009 were examined for fingerprints.
50. Six fingerprints suitable for comparison were located on the three scripts in total. None of the six fingerprints located on the scripts belonged to Kristina Mitchell or the accused.
51 Three fingerprints suitable for comparison were identified as belonging to the officer in charge of the investigation and a government officer responsible for processing scripts.
52. Three fingerprints suitable for comparison were not identified. The three fingerprints not identified did not belong to any person known to have handled the scripts including the pharmacist at CMDC and government officers responsible for processing scripts.
Investigations
53. Between 5 September 2014 and 4 December 2014, surveillance devices recorded conversations in the accused's home at 2 Clontarf Place, Woodbine pursuant to a lawfully obtained warrant.”
Medical evidence
Insulin as a cause of death
Professor Drummer, a forensic pharmacologist and toxicologist, gave the following oral evidence:
“Q. Going to paragraph 24 of your report, you refer to the effect of insulin when given to excess, particularly to a non-diabetic person and how it can rapidly cause "low to pathological low glucose concentrations". When you say "rapidly", what are you referring to? What do you mean by "rapidly"?
A. Oh, well, that's in the context of where it was administered, allegedly, or - and the dose and the formulation, the type of formulation; some formulation have a slower action than other formulations; but, ordinarily, if some amount of insulin was injected it would probably take somewhere between an hour or more, depending on the dose, formulation and where it was injected.
Q. So, are you saying that an hour or so to cause "pathologically low glucose concentrations"?
A. Well, it all depends on the dose and where it was injected and the formulation. So, it could be quite rapid, if it was rapidly available insulin; if it was a slow acting form of insulin, it could take some hours.
Q. Now, if it was the fast acting insulin of the kind that is contained in a NovoRapid pen - I think it's called "Aspart insulin" - if a [lethal] dose of 300 to 500 units of Aspart was given intramuscularly in the buttocks to a person who was not a diabetic, how rapidly would that cause coma, in your view?
A. Oh, it could be quite rapid. It could be within an hour.” (T.328.22)
“Q. As a general proposition, insulin administered subcutaneously would take longer to have an effect than when it is administered intramuscularly?
A. That's a generally - that's generally true.” (T.331.43)
Professor Carter, an endocrinologist, gave oral evidence as follows:
“Q. Professor, do you tell the Court that the article by Professor Marks that you've been shown, exhibit W, is recognised as being one of the leading articles in relation to intentional overdosing with insulin?
A. Yes, I think that the person who has published the largest reviews relating to the largest number of people who have had accidental or intentional overdoses with insulin have been written by Professor Marks.” (T.339.8)
“Q. You refer there to "short acting insulin such as NovoRapid" and you state that "the glucose lowering activity of a drug like NovoRapid would occur after 10 to 30 minutes of administration"?
A. As a general statement, yes.
Q. And, "The peak activity is somewhere between half an hour and three hours after administration"?
A. As a general statement, yes.
Q. And, "The duration of the activity is somewhere between three hours and five hours"?
A. As a general statement, yes.” (T.339.18)
“Q. Perhaps if I could be more specific in my question. In terms of the rapidity of onset of symptoms and the rapidity of coma and death in the event of an overdose, could you compare subcutaneous administration with intramuscular?
A. Yes. So, there is greater blood supply into the muscles and if the insulin is injected into the muscles, the insulin is absorbed more quickly into the capillaries and other blood vessels compared with subcutaneous injections.” (T.339.40)
“Q. Is it difficult or easy for a doctor to extract or decant the insulin from a NovoRapid pen?
A. No, it wouldn't be difficult at all.” (T.340.28)
“Q. And in paragraph 21 of your report, do you state that the fatal dose of insulin would be in the range of "300 to 500 units"?
A. Well, I hope I stated that it was impossible to be accurate with respect to how much insulin could kill a person through hypoglycaemia and the data that leads to that conclusion of around 300 to 500 comes from the medical literature; when perpetrators of homicide have confessed to how much insulin they injected or, in cases of suicide, trying to work out, from evidence left behind, how much insulin may have been injected. But there is an enormous amount of individual variation in the amount of insulin that would be required to cause profound hypoglycaemia and then there is an enormous amount of individual variation with respect to what effect that profound hypoglycaemia has on the subject. In other words, would it lead to death quickly; or would it not lead to death?” (T.341.16)
“Q. So, in your view, would the fatal dose of Aspart from NovoRapid be more or less or the same as the 300 to 500 units postulated by Professor Marks for regular or normal insulin?
A. Well, there are no data on that but, theoretically, I would expect a smaller dose of Aspart to achieve that end because the onset of hypoglycaemia would be sooner with Aspart than it would be with regular insulin and peak activity of the insulin would be earlier than it would be with regular insulin ...
So, on the basis that with a large dose that profound hypoglycaemia could occur sooner with Aspart than with a regular insulin, I would think that it's more likely that death would occur sooner with Aspart than with a regular insulin.
Q. Doctor, if a non diabetic was injected intramuscularly, with 300 to 500 units of Aspart, are you able to say how soon the recipient of that amount of Aspart would feel some symptoms?
A. Well, very variable, but it could be as soon as ten minutes; but within half an hour would not be uncommon. And one of the reasons I am coming to that conclusion is with what happens to people with diabetes who are having Aspart before meals.
It's recommended that Aspart be taken at the commencement of a meal so that carbohydrate is in the system by the time the insulin is absorbed and, therefore, there is some correlation between the glucose level in the blood increasing and the insulin level in the blood increasing, which is much more likely to achieve the goal of having normal blood glucose levels.
Every endocrinologist would know, and I think every diabetic person taking Aspart would know that, if Aspart is injected and then there is a delay before the meal, that the chances of them getting symptoms of hypoglycaemia before starting the meal increase the longer that delay. …
Q. And in your opinion, in the same situation, a non diabetic injected intramuscularly with 300 to 500 units of Aspart, how quickly would the person become unconscious?
A. Well, that's also very variable, but it could be within half an hour or - yeah, half an hour or less.
Q. Again, is that based upon clinical experience?
A. Yes, clinical experience and publications in the literature.
Q. In your view, again in the same situation, a non diabetic injected with 300 to 500 units of Aspart intramuscularly, how soon would death occur if there was no medical intervention, the patient was not in a position to eat anything and nothing was done to alleviate the situation?
A. A very difficult question to answer, but the information in the literature has indicated that death has occurred within three hours, but there are so many factors that influence whether or not somebody survives in that situation.
If - well, some of the factors include body weight. If somebody is thin, elderly, and is malnourished and has poor stores of glucose in the liver, hypoglycaemia and coma and death would be expected to occur much sooner than an otherwise fit and healthy, younger person who is well nourished.
The sensitivity of the person to the insulin is also very important. Insulin, basically, acts by attaching to specific receptors on cells and, in effect, opening a gateway whereby glucose goes into the cells, and the more insulin in the bloodstream, the more efficient that process is. But also there's something like a magnetic attraction between the insulin and the receptor and there are situations where that attraction is reduced and so insulin isn't as efficient. So, that's what we call "insulin resistance", but the attraction might be greater so that even small amounts of insulin in the circulation, those gateways open up, so those people are more sensitive to the actions of insulin.” (T.341.44, T.342.9 – T.343.20)
“Q. And, professor, at the end of your report in paragraph 41, you state that, "Based wholly or substantially on the knowledge" of what you were provided with to produce your report, you are of the opinion "that it is possible, given all the circumstances of the matter, that Christine Crickitt could have died from an overdose of insulin". Are you still of that view?
A. Yes, I'm of the view that it's possible, but I cannot say one way or the other, but it's - everything that I was provided with would be compatible with the postulate that insulin was involved.” (T.344.14)
In cross-examination Professor Carter said:
“Q. And in that article [Exhibit W] Professor Marks indicates a period of six to 12 hours of coma to produce irreversible brain damage and death as a general proposition?
A. You showed me that.
Q. Yes. You don't disagree with Professor Marks' opinion in respect of that period?
A. Could you repeat exactly what he said again, please?
Q. The period of six to 12 hours of coma produced by hypoglycaemia is generally required to produce irreversible brain damage and then longer to kill?
A. Well, I would think it depends on how you define "generally", but I don't strongly disagree with that knowing that there are exceptions where irreversible brain damage can occur earlier than the six hours and death can occur earlier than the six hours.” (T.347.39)
“Q. You do not disagree with the proposition Professor Marks expresses there that to produce a predictably fatal outcome a large quantity, probably in the region of 1,000 units, might be required?
A. Well, I think most people would agree that the larger the dose the greater the chances of death occurring. I do note that, in his review article four years later, he said: "These suggest that, in an otherwise healthy subject, something in the region of 300 to 500 units of regular insulin are required to produce a fatal outcome." For example, case 60. So, it's a very grey area, I think, because of obvious reasons; there are no controlled trials on this subject and the more information that's available from homicide or attempted suicide or suicide, the easier it would be to come up with a meaningful conclusion. But I would agree that 1,000 units is highly likely to achieve a fatal outcome, but lower doses have been shown in numerous instances to produce a fatal outcome.” (T.349.9)
“Q. In any event, you don't disagree with Professor Marks' comment that, in his 2005 article, a dosage in the vicinity of 1,000 units or more would be consistent with a predictable outcome?
A. Well, I would agree absolutely with his statement, "The dose necessary to produce a predictably fatal outcome is large." I agree totally with that. And then he's saying, "Probably in the region of 1,000 units to judge from the literature relating to suicide and homicide" and it's not exact - it's not an exact comparison with the 2009 comment he made, but it's my impression that, as he became aware of more instances of suicide and homicide, he lowered that 1,000 units. But I would think that, if somebody wished to be almost 100% certain of achieving death with insulin, that person would give as large a dose as they could possibly give in the order of in excess of 1,000, but we do know that doses less than 1,000 can achieve it. So I really can't comment as to how likely it is under 1,000 versus over 1,000, except that the larger the dose, the greater the chance of death occurring.” (T.350.5)
Professor Marks gave evidence audio-visually from the United Kingdom. He also was an endocrinologist and had published two articles which were referred to in the evidence on this subject, i.e. “Hypoglycaemia: Accidents Violence and Murder Part 2” in 2005 (Exhibit W) and in 2009 an article entitled “Murder by Insulin: Suspected, Purported and Proven – a Review” (Exhibit BE). Professor Marks had an interest in accidents, violence and murder involving insulin.
In his report to the Crown of 29 November 2011 at p 5.9 Professor Marks said:
“In the absence of any definable cause for Christine Crickitt’s death the possibility that it might have been produced by the surreptitious administration of insulin was raised by those previously consulted. While this cannot be excluded with certainty there is nothing to suggest that insulin was involved and some minimal evidence to suggest that it was not.”
In his oral evidence in chief, he explained that observation as follows:
“Q. The first question and answer related to that statement on page 5 of your original report that there was nothing to suggest that insulin was involved and some minimal evidence to suggest that it was not. In your conversation with Ms Turner, did you explain that your reason for coming to that conclusion was your belief that it had taken less than six hours for Christine Crickitt to die?
A. It is the - that was the main reason why I thought that that was minimal evidence for believing that insulin might not have been involved. I would have expected her to have stayed alive for more than six hours following the injection of insulin.
Q. And when the evidence about the timing of her death was explained to you further, namely, that the accused had come home at 8pm and the body hadn't been discovered until about 8am, 12 hours later, did you revise your opinion in accordance with the notes of your conversation with Ms Turner?
A. I worked on the basis that I was now put in the position of being asked whether 12 hours was - which would have been at least 12 hours - without anybody doing anything, if she had been given insulin 12 hours before, that reduces the minimal evidence for insulin not having been administered. (T.366.18)
Q. In light of that, are you, once again, of the view that there is neither any evidence for, nor against, the administration of insulin to cause the death of this woman?
A. Absolutely.
Q. No medical evidence, I meant?
A. No evidence one way or the other.” (T.368.1)
In cross-examination Professor Marks was taken to the following passages from his report:
“Q. And you say:
“These data suggest that most people who are in hypoglycaemic coma for less than six hours recover without permanent brain damage, whereas the incidents of brain damage increases thereafter.”
A. Yes, that's correct.
Q. And, further on in that same passage you say:
“Death can occur at any time after six hours or more of coma, but can, very rarely, also occur after a shorter period.”
A. Yes.” (T.368.23)
“Q. All right. The period in which hypoglycaemia may be induced in an individual with an insulin overdose varies very much from case to case, is that correct?
A. It varies on the dose given, the responsive time of the person's own body, when they last ate. In fact, if they have recently eaten, hypoglycaemia may take quite a long time to occur in somebody after they've been given insulin.”
“Q. If you were to assume a meal comprised of various food groups, such as steak, potatoes, coleslaw?
A. Yes.
Q. Consumed some time after 8pm, can you give us any indication how long consumption of that food might have affected response to insulin and development of hypoglycaemia?
A. It might have delayed it as long as three or four hours. On the other hand, it might have had very little effect, depending really on the sensitivity of the patient to insulin that was administered, the size of the dose of the insulin, and, as I say, how well or rapidly it was going to be converted in the intestine into glucose, which is the form in which carbohydrate is absorbed into the blood. So, it's a variable feast. It is possible for it to be delayed up to three or four hours. Whether it was or not is impossible to determine.
Q. A further significant factor affecting response to insulin is obesity, correct?
A. Yes, yes.
Q. You're aware that the deceased in this case had a body mass index of 37.4 kilograms per square metre?
A. Yes, she would have been less sensitive to insulin than somebody who was of average or normal weight.” (T.370.5)
“Q. In the conference you had with the Crown Prosecutor that's recorded in the email exchange you had last month
A. Yes.
Q. - you expressed the view - and this is on page 1 of the email exchange that, having regard to the obesity of the deceased, she would have needed a very big dose of insulin and she would probably have needed 12 hours or more to die?
A. That is what I said, that's what I believe. But these are probabilities as opposed to certainties.”
…
A. The dose of insulin is more important than the nature of the insulin because there is a finite limit, a rate at which insulin can be destroyed in the body. So, regardless of the type of insulin, it's the duration of the hypoglycaemia and the depth of the hypoglycaemia that is important, but the length is more important. So that we know that most people who are successful in killing themselves with insulin have given themselves doses of about 1,000 units or more.
…
I'm quite incapable of giving you any better estimate of the amount of insulin that would be required, but I would have said that the most likely dose of insulin necessary in this case would be over 500 units and probably nearer 1,000 units. (T.370.46 – T.371.42)
…
A. Oh, I mean, 500 units or 1,000 units is the sort of dose that people with - who attempt suicide use. And, as I've pointed out, if they have eaten recently and in certain other cases, it may be up to three or four hours after the injection of insulin. This is unusual. I mean, the normal course of events is that one would - somebody after a big dose of insulin would have become sufficiently hypoglycaemic to have gone into coma within an hour, but there are exceptional cases, particularly when people have eaten very recently and if they are resistant to insulin where it may be delayed three or four hours.
Q. Having regard to the level of obesity of the deceased in this case, are you able to offer any opinion regarding the probable period required for such a dose ---
A. I would have expected her to have been unconscious and in coma within two hours of a large dose, let us say over 500 units of insulin. I would have expected the most likely thing would be for them to have gone into hypoglycaemic coma within about two hours.
Q. And then is it your evidence that you would expect it would take probably 12 hours or more of hypoglycaemic coma before death?
A. That's - I mean, that's what would be what one might expect. In fact, it quite often takes much longer, but these are, and I point out, these are really average - well, not average figures, but figures we know have been obtained. I came across just the other day a report of a patient who died within six hours of becoming hypoglycaemic, but - it can happen very quickly, it can happen more slow - over a few hours, or, as in the majority of cases that we know about, they take 12 or more hours to die, and usually, under those circumstances, they die from secondary complications because somebody has usually found them, given them glucose, they have not come around because irreversible damage has already occurred to their brain, which takes about six hours to develop, and they die of bronchopneumonia usually ten days or so later. That's the traditional - the most common phenomenon. But, as I pointed out, all things can happen and that is why I felt that really there was very little evidence one way or the other to support a diagnosis of insulin poisoning in this case.” (T.373.12)
“Q. 500 or more of insulin?
A. Yes.
Q. During those two hours, what would have happened to a person who received such a dose of insulin? Would they be confused? Would their speech be slurred? Would they be able to function normally?
A. Well, again, this is one of those things that one has to rely upon. I've published cases and one knows there have been people who have given themselves these sort of doses of insulin who have then walked into the casualty department or accident and emergency department of a hospital two or three hours later and said what they have done, been still perfectly conscious and so on. So these cases occur, but the typical response to even a smaller dose of insulin is that during the first 20 minutes or so nothing happens. After about half an hour to an hour people start to sweat, feel uncomfortable, feel unwell, shaky and so on, but they are still able to get around.
Then, as the blood glucose level continues to fall or stays low for a further time, they then become stuporose, that is, that they are able to be aroused and then eventually they go into coma where nothing you can do to them will make them respond. But that is the sort of thing that you would expect to occur in a typical case of somebody given a dose of insulin big enough to overcome their natural bodily defences against hypoglycaemia.
So, for the first 20 or 30 minutes after a big dose of insulin, somebody is able to get around, do things, talk to people and usually resist if they know that this is a consequence of them being injected. I think I actually - well, I know of at least one case in which somebody was treated, given a big dose of insulin, they managed to run away and escape and collapse in the arms of somebody in another building, by which time they were able to communicate to tell them there was something wrong, that they had been given insulin, and eventually the people who injected her were brought to trial. But that is just one example where somebody was able to overcome the fact that they had been poisoned with insulin.” (T.374.8)
The Crown submitted that on that state of the evidence, the position was “implacably neutral”, i.e. that insulin administration leading to fatal hypoglycaemia could not be excluded but there was no evidence on clinical grounds that it was involved.
The defence submitted that while the accused could have extracted insulin from multiple FlexPens into a syringe and injected it, and that there was evidence that this could be done relatively easily, there was no evidence to support the theory that it occurred. No syringes or used FlexPens were found despite searches of the accused’s home and bins.
The defence submitted that when considering the time required for an insulin overdose to kill, it was necessary to take into account two periods, i.e. the period required to induce coma and then the period for coma to lead to irreversible brain damage and death. The defence characterised the evidence of Professor Marks as indicating that after a big dose of insulin a person could become sufficiently hypoglycaemic to go into a coma within an hour but where the person had eaten recently and was insulin resistant it might take three or four hours and that having regard to the obesity of the deceased, and a dose of 500 units, coma would most likely occur within about 12 hours. The defence submitted that the effect of the evidence of Professor Marks was that in the majority of cases it took 12 hours or more of coma until death and that in this case, given the obesity of the deceased, he would expect 12 hours or more of coma until death, although this was based on probabilities rather than certainty.
The defence submitted that although in theory the timeframe between when the deceased was last confirmed alive (7.36pm) and first confirmed dead (8.45am) was approximately 13 hours realistically the available timeframe was likely to be much narrower. The defence submitted that the probabilities favoured the deceased having a meal after the accused returned home at about 8pm. This was consistent with the text messages between them. The defence also had regard to the circumstances in which the deceased was found, i.e. wearing a nightie and having gone to bed. The defence submitted that it was difficult to envisage a scenario in which the accused could have injected the deceased with insulin until after the meal. The defence submitted that having regard to the deceased’s obesity and the fact of a meal, the onset of any hypoglycaemic coma, would have been delayed and was unlikely to have occurred until the late hours of the night of 31 December 2009.
As part of the same submission, the defence referred to the observations of the first police officers to arrive at the scene to the effect that the deceased’s body appeared to be affected by rigor mortis. This observation was made at about 9 – 9.30am. When Detective Stephens examined the deceased at 13.05pm he observed fixed lividity consistent with the deceased’s position.
The defence relied upon the evidence of Professor Duflou. The defence submitted that Professor Duflou’s opinion was that, while it was very hard to say, lividity to the extent that he observed on the photographs taken by Detective Stephens could mean that the deceased had remained in situ for 12 hours or more. He said that while he could not exclude it, it would be relatively unusual for lividity to become fixed in that way in a period of six hours. Professor Duflou said that he would feel much more comfortable with a period of 12 hours.
In his report of 22 March 2011 (Exhibit AK), for use in the coronial inquiry, Professor Duflou said:
“8.1 Can you comment upon the likely time of Christine Crickitt's death (noting as relevant, the variables which may impact cause of death)?
The most accurate means of determining time of death is by direct observation by a trained observer. An example of this would be a medical practitioner observing a cardiorespiratory arrest in a patient. Less optimally, a reliable non-expert witness may be able to provide such information. Much less accurately, various observations can be made of a body, from which can be interpreted a likely time of death. In the early post mortem period, such observations can include identification of rigor mortis (stiffening of the body muscles), identification of post mortem lividity (the settling of blood in dependent parts of the body) and cooling of the body. Other less traditional methods which could also be used in the early post mortem period could include the response of the patient to attempted resuscitation, and the measurement of various biochemical alterations which may occur. With the exception of direct observation by a trained observer, all methods are inherently inaccurate and unreliable, some more so than others. There is the added problem in the case of Mrs Crickitt of her having a thyroid condition. Such condition could raise the metabolic rate, and I suspect it is possible that it could add to uncertainty in relation to making an estimate of time of death.
I note that the deceased was observed to be cold to touch, to have rigor mortis and to have post mortem lividity consistent with her position, as reported by Detective Sergeant Stephens at 13.05 hours on 1 January 2010 (page 7 of his working notes). This would not be unexpected considering the deceased was independently confirmed dead shortly after 08.15 hours that morning, some 5 hours previously. By the time the body was examined by Dr Irvine the following morning, rigor mortis had worn off, and there was an early infestation with fly eggs.
Unfortunately, in this case I do not believe it is possible to comment on the likely time of death in this case, without independent information on environmental temperature in the bedroom, the deceased's body temperature on discovery, and optimally the deceased's body temperature prior to her death. However, it is in my view not unreasonable to opine that death could reasonably have occurred at any time between when she was last independently verified as alive, presumably on 31 December 2009 and when she was confirmed dead on 1 January 2010. The loss of rigor and presence of fly eggs at autopsy would tend to suggest a longer rather than shorter post mortem interval, but this is an extremely subjective view, and there are many circumstances where this may not be the case, including the present case.
Oral evidence of Professor Duflou on this issue was as follows.
“Q. As a general proposition it's an unreliable or difficult exercise for a forensic pathologist to determine accurately, at least, the time of death?
A. Yes, I think it's fair to say it's almost impossible, unless there is a person present who is knowledgeable in such matters and can physically determine time of death as it happens.
Q. Indicia as to time of death, lividity and rigor mortis?
A. Those are two that are commonly used, yes.
Q. In respect of lividity, is it the case that it appears soon after death, but only becomes fixed at a later time?
A. Yes, correct. In most circumstances, in fact almost all circumstances, post mortem lividity or the settling of blood becomes apparent a short while after death, probably 30 minutes; possibly an hour or two at most. It then remains in that position unless the body is moved into another position. So, if you consider, to begin with, the body lying on its back, you will have post mortem lividity as a result of blood settling down on the back, so there would be red and blue discolouration of the back.
If you then turn over the body, over the next six, 12, 24 hours, that post mortem lividity can then move to the part of the body that is next closest to the ground, if you like.
If you don't move the body in the first 12, 24 hours or so, the lividity will become fixed. In other words, if you move the body after, let's say 24 hours, turn it over, that lividity then does not move; it remains where it had settled in the first place, so it is fixed in that position. (T.288.15)
…
Q. Approximately how long after death would it take for that effect to be possible?
A. Are you referring here to paradoxical lividity?
Q. Yes.
A. It's hard to say in individual cases because you very much have variability in this occurring, but you can certainly get movement of lividity a day or more after death has occurred.
Q. Can I ask you some questions now about rigor mortis? How long generally after death does rigor mortis appear?
A. It probably tends to appear within an hour or two after death, becomes quite - in the smaller muscles of the body, so typically your hands, your jaw muscles. It then distributes throughout the body and, in general terms, by about three to six hours you tend to find rigor mortis in the major muscle groups as well. There are significant qualifiers to that, but that is a - as a general principle, probably by about six hours or so, you will have good going rigor mortis in the body. (T.288.50)
Q. Dealing, firstly, with the photograph taken at the crime scene, do you see evident lividity?
A. Yes, I do.
Q. At the time that I showed you that photograph this morning, did you make a comment about the face of the deceased?
A. Yes, it really looks quite suffused, in other words, quite intensely purplish in colour. (T.412.38)
…
Q. Does it appear to you that the lividity on the torso, evident on the photograph taken at the crime scene, remained fixed?
A. Well, I think that would be fixed lividity, yes.
Q. Are you able to give an opinion as to the likely period of time after death that the deceased would have remained in situ for the lividity to fix?
A. The lividity of this extent could mean that it’s 12 hours, more than 12 hours, it could certainly be days long that lividity. I agree it is very hard to say but it certainly appears fixed here.
Q. Is it likely in your opinion that the lividity would become fixed in that way, as evident in that photograph, in a period of, say, six hours?
A. That, I think, would be relatively unusual, but I couldn't exclude it; but it would be a relatively unusual event.
Q. Do you tend to the view that it would be more consistent with a period of 12 hours or more?
A. Mm, yes, I think more than 12 hours, I'd feel much more comfortable with.
…
Q. And you were asked some questions about lividity. Would you have a look at exhibit H, please, photograph number 30 you were shown today (shown).
A. Yes.
Q. Do you agree that it appears to be her right cheek that is in contact with the bedside table?
A. It appears to be, yes.
Q. However, the left side of her face would be closer to the ground?
A. Yes.
Q. Do you agree that, when she was turned over - I think it is the exhibit that was just tendered by my friend, number 5 - do you agree that the lividity is all on the left side of the face?
A. It's on the left and it's on the forehead as well by the looks of things, but yes.
Q. Do you agree that there's no lividity on her right cheek?
A. It appears not, no. (T.415.44)
The defence submitted that although the relationship between the accused and deceased was troubled and unhappy, it was not so toxic as to create a motivation sufficient to kill her. The defence submitted that there was no evidence that the quality of the relationship was so toxic that the accused’s pure hatred of the deceased would drive him to kill her. The defence submitted that the alleged manner of killing did not bespeak rage or a loss of control and was not what one would expect from a relationship characterised by impassioned hatred of one for the other.
The defence submitted that their unhappiness together was more likely to lead to the accused and the deceased divorcing. The defence submitted that this was borne out by their past actions. The accused and the deceased had each been married and divorced once before. They had no children together. There was no evidence to suggest that their marriage was something the accused considered so sacrosanct that he could not end it by legal means upon the relationship deteriorating irreconcilably.
There was no vulnerability in the deceased, nor reliance by the deceased upon the accused, such that he could not extricate himself from the marriage. The deceased was financially independent. On 30 December 2009 she had said to her daughter (Kayleen Riley T.228.27) that she could “leave Brian and meet a nice man at church or bible study”.
The defence submitted that the circumstances of the affair with Ms Livermore were not so extreme as to compel the accused to kill his wife. It submitted that although there was discussion of a potential marriage, there was no distinct proposal. It was a discussion which Ms Livermore described as a “feasible possibility down the track” (T.185.18). Ms Livermore was aware that the accused was married and there was no evidence of an insistence by her that he leave his wife by a certain time or at all.
There was no ultimatum issued to the accused by either the deceased or Ms Livermore that he leave the other. There was no event to that effect likely to arise, no crossing of paths between the deceased and Ms Livermore, such as to compel the accused to act to prevent its occurrence. By the accused’s own admission to police, the deceased suspected the affair and had confronted him about it which was confirmed by Mrs Ball.
The defence submitted that Exhibit 3 revealed that the accused possessed some finances independently of the deceased and had a superannuation fund. There was no evidence of an urgent requirement for money by the accused beyond that which he had independent access to, so as to justify the murder of his wife in order to gain access to her share.
The defence submitted that although the accused was the beneficiary of the deceased’s life insurance policy, for a professional person with a good earning capability, equity in a home and in investments (real and other property) and superannuation, the insurance monies themselves in the absence of evidence of a need for money, were not such as to make it likely that they were a motivating factor for murder.
The defence submitted that although a financial benefit would flow to the accused following a claim on the deceased’s life insurance policy, the policy was taken out many years before (2005). It could not be inferred from the timing that it was taken out with an intention to kill the deceased. There was no evidence of the accused inquiring as to the value of the policy proximate to the time of her death, nor of increasing the value of the policy. The defence noted that in his first ERISP, the accused displayed ignorance of the insurance policy by overstating its value by $270,000. The defence noted that a claim on the policy was not made until more than two years after the death (March 2014) after the conclusion of the coronial inquest.
I agree with the defence that financial gain was at best a minor motive, and at most involved a collateral benefit for the accused, if the deceased died. The financial repercussions of a divorce, however, should not be ignored. Without setting out in any detail recent jurisprudence in the Family Court of Australia, it is well known that if one of a married couple is the prime earner and the other not only does not work but suffers from some illnesses (as was the case here), any division of family property would be very much in the non-earner’s favour, particularly where a marriage had lasted for 19 years. If it were the intention of the accused to marry Ms Livermore and start a new life, it may well have been in his contemplation that a divorce would be very costly and, apart from his assets being significantly depleted, he would almost certainly be required to make substantial maintenance payments to the deceased.
That having been said, I am satisfied that despite the rational arguments put forward by the defence, the relationship between the accused and Ms Livermore, and his desire that they marry and live together in the future, amounted to the principal motive for him to kill the deceased. It is apparent from the evidence that the accused’s unhappiness with his marriage had developed into a positive dislike on his part for the deceased. Having viewed the accused’s ERISPs on a number of occasions, there is considerable force in the Crown submission that during those ERISPs the accused spoke disparagingly of the deceased and was trying to justify his actions in having an affair.
While the rational course of action for the accused in those circumstances would be to end the marriage and to take steps legally to be with Ms Livermore, it is trite to observe that of their very nature matters of love and hatred are not rational. The actions of the accused in the weeks leading up to the deceased’s death in spending most nights with Ms Livermore and in staying away for several days at a time provide a clear indication of the level of his emotional attachment to Ms Livermore and would indicate that he did not care what the deceased thought. Had he been thinking clearly, he must have realised that matters could not continue in that way. Of course it is by no means clear that the accused was thinking clearly at the time.
Support for the strength of the emotional attachment between the accused and Ms Livermore at the time and his desire to be with her can be inferred from his conduct after the deceased’s death. The various instances identified by the members of the deceased’s family of Ms Livermore being with the accused at the morgue, at his home and driving the deceased’s car, not only show extraordinary insensitivity on the part of the accused, but fully support a conclusion that he was so in love with Ms Livermore that he simply did not care what people thought. This is also clear from his behaviour on 1 January 2010 when he spent a considerable amount of time with Ms Livermore, despite the fact that he knew that police were investigating the deceased’s death, and clearly had suspicions about his part in it.
It is also clear from the evidence of Ms Livermore that it was the accused who was more committed to their relationship. He was the one who raised the issue of marriage and he was the one who was making plans for their future together (Exhibit G , Q. and A.55).
I am satisfied that a combination of increasing dislike for the deceased and his infatuation with Ms Livermore provided a motive for the accused to murder the deceased. Given my other findings, not only am I satisfied that it would have provided an adequate motive, I have concluded that it was the primary motive.
I accept the defence submission that the accused admitted to police that he had told lies in his first ERISP before police interviewed Ms Livermore. I have concluded, however, that the accused does not gain much benefit from that fact. After he had provided his first ERISP, the accused spent the rest of the day with Ms Livermore at her home in Leumeah, until in the evening he was taken to Woodbine while police searched his house.
We know that while he was with Ms Livermore, she urged him to tell the whole truth. In must have been clear to the accused when he went with the police to be present when his house was searched, that Ms Livermore would be interviewed by the police and that she would tell the truth about their relationship. Accordingly, by admitting that he had lied in the first ERISP, I have concluded that the accused was doing no more than accepting the inevitable, i.e. that the police would in due course learn about his affair with Ms Livermore.
The above analysis has dealt with the eight most important pieces of circumstantial evidence relied upon by the Crown in its case against the accused. The Crown did, however, identify additional pieces of evidence which it submitted implicated the accused in the murder of the deceased. In view of my findings on the major aspects of the Crown case, these additional matters can be briefly dealt with.
The timing of the accused’s phone calls to Ms Livermore – 1 January 2010
The Crown submitted that call number 29 (Exhibit BG) at 1.50am was the accused calling back Ms Livermore and speaking to her for about five minutes as he told the police. The Crown submitted that the accused was at home at that time and that the earlier calls to the accused by Ms Livermore late in the evening of 31 December and early in the morning of 1 January were received by the accused on his phone when the accused was at home.
I do not understand that submission to be disputed by the defence. The defence in fact relied upon those phone calls as confirming the accuracy of what the accused told the police in his second ERISP, i.e. that he telephoned Ms Livermore and apologised and asked if she would like him to come around and that she said ‘yes’. There is, however, an issue between the parties as to where the accused was when he made the further calls to Ms Livermore later on the morning of 1 January 2010, being calls 30 – 34 of Exhibit BG. The first four calls were made at 8.21am, 8.23am and two calls at 8.26am. The first call was to his own voicemail, the second to Ms Livermore’s home landline, the third to Ms Livermore’s home landline and the fourth to Ms Livermore’s mobile. Call 34 took place at 8.32am when Ms Livermore telephoned the accused on his mobile from her landline.
The Crown submission is that these phone calls were made by the accused while he was at his house before he called triple-0 at 8.44am. In support of the submission, the Crown relied upon what the accused told Constables Moylan and Sirol when they spoke to him, i.e. that he had arrived home that morning at 8.15am. The Crown submitted that this was consistent with him leaving Ms Livermore’s house at about 8am. The Crown submitted that this information was given to Constables Moylan and Sirol, not long after the fact of it occurring, which made his estimate of the time of his arrival more likely to be accurate. The Crown relied upon what the accused told police in his first ERISP (Exhibit F, Q. and A. 209) that he came home at 8.15am and that he knew this because he had looked at his watch as he came inside (Exhibit F, Q. and A. 296). The Crown also relied upon the fact that the calls made that night from the accused’s home, i.e. calls 30 – 34, utilised the same cell tower, Eagle Vale – 2. The Crown submitted that this was consistent with the accused being home at the time he made those calls to Ms Livermore from 8.23am onwards.
The Crown submitted that making such calls while he was at home when he did not know the location of the deceased was inherently improbable. The Crown submitted that at the time the accused made these calls he knew the deceased was dead and that he could telephone Ms Livermore with impunity.
The defence submitted that reliance should be placed on what the accused said in his second ERISP which was that he left Ms Livermore’s house for work at 8am and had travelled three quarters of the way when he realised that he did not start until midday. At that point he called Ms Livermore to tell her that he would go home (i.e. he was not yet home) to get a few more things and would then come back to her place (Exhibit G, Q. and A. 37). The defence submitted that in both ERISPs, the accused had provided the same information about what he had done when he arrived home, i.e. that he had looked into the bedroom, the door of which was half closed, and could not see the deceased. He fed the cat and performed some other household tasks, and it was only after that when he had not seen the deceased that he went into the bedroom.
The defence submitted that this sequence of events was consistent with the accused making phone calls 30 – 34 before he arrived at home and carrying out a number of household tasks after he arrived at home, before calling triple-0.
The defence submitted that when one looks at the photographs and the sketch plan of the Woodbine house (Exhibit A) they support the accused’s account to police that when he first looked for the deceased he could see the bed but was unable to see the deceased from where he stood (i.e. the lounge-room near the garage and not the front door). The defence submitted that there were other matters which supported the accused’s version of events. They were that the cat had been fed and that there was rubbish in the bins. The defence relied upon the evidence of Detective Stephens that the bonnet of the accused’s car was warm when he felt it (Detective Stephens having arrived at the premises at 8.30am). The defence submitted that the fact that the carpet in the lounge-room had been recently vacuumed went nowhere and was not regarded by Detective Stephens as suspicious.
The defence submitted that it could not be inferred from the cell tower notation “Eagle Vale-2” that the accused was at home when he made calls 30 – 34. The defence submitted that this was a matter for expert evidence and that none had been adduced. There was no evidence as to the location of cell tower “Eagle Vale-2” and that Exhibit 1 made clear that the location of Ms Livermore’s house, the accused’s workplace and the accused’s house at Woodbine were all relatively proximate to one another so that in the absence of evidence concerning both the cell tower location and the interrelationship between the calls and the cell tower, no inference could be properly drawn that these telephone calls were made from the Woodbine house.
There is an inherent improbability in the accused not being aware of his rostered hours of work on New Year’s Day. That is so notwithstanding that he apparently told Ms Livermore before he left her house at about 8am, that he was going to work. Such an explanation to Ms Livermore would provide a sufficient pretext for him leaving her house at that time. If, as I have found, the accused did administer insulin to the deceased with an intention of killing her, the strong likelihood is that he would return directly to the Woodbine premises to assess what the situation was before contacting the police.
That having been said, had I not made that finding based on other evidence, I agree with the defence that the evidence on this issue was otherwise equivocal and there is no clear evidence as to where the accused was when he made telephone calls 30 - 34. I agree that the Crown could not rely on the Eagle Vale – 2 cell tower to establish this without expert evidence.
The Crown submitted that the fact that the accused returned to his home on the morning of 1 January 2010 supported its circumstantial case. The Crown developed its argument to the effect that the accused had no real reason to return home that morning. He had left home earlier that morning with a small suitcase of clothes. He was not due to go to work until midday (Exhibit AX). The Crown submitted that the real reason why he returned home was that he knew that he had left his wife either deceased or in a comatose state and that he needed to pretend to “find” the body and notify the police. The Crown submitted that if the accused went to work from Ms Livermore’s house at midday, someone else might discover the body and the police would then realise that he had not been home that night.
This issue was not specifically dealt with by the defence, other than in its acceptance of what the accused had said in his second ERISP, i.e. that he had mistakenly travelled part of the way to work before he realised he was not rostered until later that day and had then decided for the reasons he gave in the second ERISP, to go home. I have concluded that there is force in the Crown submission on this issue and that the accused returning home, rather than staying at Ms Livermore’s house, does support the Crown’s circumstantial case.
The Crown submitted that the delay by the accused in contacting the police after he got home on 1 January 2010 supported its circumstantial case. The Crown challenged the accused’s evidence that he was unable to see his wife in the bedroom because the door was half closed. It relied upon the evidence of Officer Liddiard and the photographs taken by Detective Stephens.
The Crown relied upon the inherent improbability of the accused making phone calls to Ms Livermore while at home if, as he said, he assumed that the deceased was somewhere in their home other than the bedroom. The difficulty with that submission, absent a finding that the accused had injected the deceased with insulin in order to kill her, has already been referred to. It is also not clear when the accused actually arrived at the house. On his initial version given to Constables Moylan and Sirol, he arrived at 8.15am. This was confirmed in the first ERISP. In the second ERISP, the arrival time must have been later but it was not specified how much later.
The Crown was not able to say what was done during the period between his arrival at the house and making the triple-0 call, other than to submit that the accused was ensuring that nothing in the house would create any suspicion against him when police arrived or alternatively, was simply mustering the courage to contact the police.
I accept that if the door to the bedroom was partially closed, the accused might have had difficulty in observing the deceased in the position in which she was found. I agree with the defence that nothing turns on the recent vacuuming of the carpet in the lounge-room. As Detective Stephens pointed out, this was a room which did not seem to receive a great deal of use and the carpet could have been vacuumed on another occasion.
The difficulty I have with this part of the accused’s statement of what happened when he returned home, is his failure after a few minutes to call out or otherwise take steps to find where the deceased was. The house was not large and the accused should have been able to quickly ascertain that the deceased was not moving about in it which would have led to a closer inspection of the bedroom.
The position of the body
The Crown submitted that the position of the deceased’s body was consistent with her being in an incapacitated condition due to hypoglycaemia when attempting to either get up or to reach the phone which was on the floor beside her bed in order to get medical assistance. The Crown submitted that it was inconceivable that a husband on finding his wife in such a location would not move her to offer assistance and to see whether she was still alive and whether her death was because she had been attacked by some intruder or merely to put her in a less humiliating position. The Crown submitted that as a doctor one would have expected the accused to make a proper assessment of whether the deceased was still alive.
The Crown submitted that the accused did not touch his wife because he did not want to create any evidence that might suggest that he had tampered with her body because he was in fact responsible for her death.
The defence did not in terms respond to this submission. It was, however, implicit in its submissions that the position of the deceased’s body was equally consistent with an alternative cause of death such as positional asphyxiation.
As with other parts of the Crown case, looked at in isolation, the position of the body raised the possibility of death as a result of an insulin injection. It is only when that matter is taken into account with other circumstantial evidence in the Crown case, together with the finding beyond reasonable doubt that the accused improperly obtained a supply of insulin on 31 December 2009, that it can be said that the position of the deceased’s body was probably due to incapacitation due to hypoglycaemia. That is the conclusion which I have reached.
The arrangement made with Ms Livermore during the day on 31 December 2009
The Crown noted that the accused admitted in his second ERISP that he had made an arrangement with Ms Livermore during the day on 31 December 2009 that he would come to her home that night and spend some time with a boy named Corey. This was a boy for whom Ms Livermore was trying to get some counselling. The Crown noted that despite this arrangement, and despite the fact that Ms Livermore was the object of his affection and the woman whom he wanted to marry, he did not fulfil that commitment.
The Crown submitted that only a very important reason would have prevented him from fulfilling this commitment to visit Ms Livermore’s home. The Crown submitted that the accused came home that night because of the deceased’s entreaties to come home for a barbeque dinner. Having had dinner and having watched a movie they then commenced to argue. The Crown submitted that there was no explanation, consistent with the accused’s innocence, for why he remained at home after they commenced to argue rather than adopting his usual response of leaving and “going for a drive”, but in reality going to Ms Livermore’s home.
The Crown submitted that a rational explanation for his remaining at his home and neglecting his obligation to Ms Livermore was that he had injected his wife with a lethal dose of insulin and needed to remain at home with her until she became comatose at which point in time he could leave her in the knowledge that she would eventually die. The Crown submitted that this was the real reason why the accused did not ring back Ms Livermore until 1.50am and why he did not attend Ms Livermore’s home until about 2am.
The defence did not in terms respond to this submission. The defence did, however, note that despite the police evidence, the photographs of the bed were equally consistent with the accused having slept in it for a brief period as with him not having done so. I agree with that interpretation of the photographs.
The accused’s description of what he did on the night of 31 December 2009 is inconsistent with his previous conduct. Since I have concluded that the accused did inject the deceased with insulin on that night, his intentions in that regard provide a reasonable explanation for him breaking his appointment with Ms Livermore. For that reason I accept the general thrust of the Crown submission although the detail is not capable of being established even on the balance of probabilities.
The behaviour of the accused with Ms Livermore in the days following the death
The Crown relied upon the following actions by the accused:
Having told Mrs Wiggins about the death of her mother at 11am on 1 January 2010, he gave an address at which to meet him. The address was that of Ms Livermore and when Mrs Wiggins went to that address later in the day, the accused was there with Ms Livermore.
When Stuart Riley (the deceased’s son) spoke to the accused on 1 January 2010 he also was given Ms Livermore’s address at Leumeah and when he went there, he found the accused with Ms Livermore.
The day after the deceased’s death, Graham Randall (the deceased’s brother) went to the accused’s home at Woodbine, Ms Livermore was there with the accused along with a number of other people.
On 3 January 2010 members of the deceased’s family went to the morgue at Glebe to view the deceased’s body. They observed the accused arrive with Ms Livermore who was driving the deceased’s BMW motor vehicle.
While Ms Livermore stayed outside during the actual viewing, she and the accused were seen together by members of the deceased’s family afterwards and it was noted that Ms Livermore was trying to give instructions as to what café they should attend.
On this occasion they were seen to walk away holding hands by Kayleen Riley.
It was the accused who decided that the deceased’s body should be cremated, which was contrary to the wishes of her family, although they ultimately acquiesced when he told them that this is what the deceased wanted.
On the basis of that material, the Crown submitted that the accused’s behaviour in the days after the deceased’s death was inconsistent with that of a grieving husband. The Crown submitted that just hours after the discovery of the deceased’s body, the accused not only chose to stay at Ms Livermore’s house while the police examined his house but invited both Mrs Wiggins and Mr Riley (the deceased’s children) to her house, being the house of the woman he had been having an affair with. The Crown submitted that because the viewing of the deceased’s body was within three days of her death, the accused should have realised how inappropriate it was that Ms Livermore accompany him, that she drive the deceased’s car and that they stand and talk intimately outside the morgue.
The Crown submitted that the accused’s behaviour was consistent with him being solely and acutely focused on being with Ms Livermore and continuing his relationship with her. The Crown submitted that it was consistent with him having little respect for the deceased and no great concern about her family and with her children knowing about his relationship with Ms Livermore. The Crown submitted that the accused was so enamoured with Ms Livermore that he did not care whether he alienated himself from his step children during a time when they were deeply distressed over the sudden and unexpected death of their mother.
The Crown submitted that the accused’s insistence upon the deceased being cremated was consistent with him wanting to ensure that after the deceased’s body was released following forensic pathology, further testing could not be conducted in the future.
The defence submitted that the appearance and demeanour of the accused in his interviews was consistent with that of a grieving husband. His presence at Ms Livermore’s house was explained by the police being in occupation of his house. The defence submitted that Ms Livermore driving the accused to the morgue and subsequently holding hands with him was consistent with her evidence that she did so in order to support him. The defence submitted that it was improbable that someone wishing to conceal their motive to kill would conduct himself in that way.
The defence noted that Mrs Ball, a close friend of the deceased, said that the accused was very upset and crying on 2 January 2010 and the deceased’s brother, Graham Randall, gave evidence that when he spoke to the accused at Leumeah he hugged him and the accused was “sort of crying a bit” (T.243.41).
The defence submitted that people respond to grief differently and that the Court could not draw any reliable inferences based on a supposition as to how the accused should have reacted following the death of the deceased.
The defence noted that Mrs Wiggins said that the accused insisted upon cremation but agreed in cross-examination that either she or her sister had acquiesced to cremation once they learned from the accused that it was the deceased’s wish to be cremated. The defence also noted that a coronial representative “went into detail” about the options available as to the timing of the cremation and that the decision to refrain from cremating the deceased until the Coroner’s Office had finished with all parts of her body was made as a family. Cremation did not occur until 25 January 2010.
I have already set out my conclusion in relation to the accused’s behaviour after the death of the deceased. For the reasons already indicated, the behaviour was not only extraordinarily insensitive from the point of view of the deceased’s family, but was indicative of the intensity of the affection the accused felt for Ms Livermore. The affection was such that he was unable to be separated from her, even though the continuance of their relationship would undoubtedly attract inquiry and investigation by police.
The evidence in relation to the cremation of the deceased is inconclusive and I make no findings in relation to it.
Conclusion
In my analysis of the evidence I have assessed each circumstance relied on by the Crown and set out my conclusions. Of necessity, in relation to some of these circumstances, I was obliged to consider them in isolation. I now propose to re-visit those issues having regard to the whole of the Crown’s circumstantial case.
As I have already made clear, the issue of whether the accused improperly obtained a supply of insulin on 31 December 2009 by means of the Kristina Mitchell NovoRapid prescription was fundamental to the Crown case. For the reasons given, I am satisfied that the Crown has established beyond reasonable doubt that the accused did obtain a supply of insulin in that way. That finding has important implications for other circumstantial evidence adduced in the trial.
When considering whether insulin was a cause of the deceased’s death, I concluded that there was no clinical evidence to that effect. That remains the effect of the medical evidence. I am now, however, satisfied beyond reasonable doubt that the deceased’s death was caused by an overdose of insulin. This is largely because of my finding in respect of the acquisition of a supply of insulin by the accused on 31 December 2009.
When considering the “purported injection site” I concluded that the photographs of the deceased’s left buttock raised the possibility of there being an injection site at that location. I am now satisfied on the whole of the evidence that photographs (Exhibits S and AL) do show an injection site and that this was where the insulin was administered by the accused. In reaching that conclusion I acknowledge that there remains a gap in the Crown case as to exactly how the insulin was administered. For the reasons already given, I have concluded that it was more likely that a subterfuge was used by the accused in order to gain the deceased’s acquiescence to him administering an injection.
When considering the likelihood of postural asphyxiation as a cause of death, I concluded that it was very unlikely but possible. On the whole of the evidence I am now satisfied beyond reasonable doubt that positional asphyxiation was not a cause of the deceased’s death.
Accordingly, I make the following findings beyond reasonable doubt.
(1)That the accused improperly obtained a supply of insulin on 31 December 2009 otherwise than in the normal course of his work as a medical practitioner by means of the Kristina Mitchell NovoRapid prescription.
(2)That on 31 December 2009 the accused administered a quantity of insulin by way of injection to the deceased.
(3)That the administration of the insulin to the deceased was a deliberate act on the part of the accused and that this act caused the death of the deceased.
(4)That the injection of insulin to the deceased by the accused was done with an intention to cause her death.
It follows that I am satisfied beyond reasonable doubt that the Crown has proved that the accused committed the offence on the indictment and I find the accused guilty of the murder of Christine Crickitt.
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