R v Davis

[2016] NSWSC 1362

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Davis [2016] NSWSC 1362
Hearing dates:	29 August - 22 September 2016
Decision date:	28 September 2016
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Guilty to each count
Catchwords:	CRIMINAL LAW – murder and attempted murder – judge alone trial – reasons for verdict – where three victims were residents in a nursing home at which the accused was an aged care worker – where each victim injected with insulin with an intention to kill – sole issue whether accused administered the injections – circumstantial case – possibility that someone other than a member of staff administered injections rejected as alternative hypothesis – evidence against accused distinguishes him from other members of staff – verdicts of guilty
Legislation Cited:	Crimes Act 1900 (NSW) ss 18, 27 Criminal Procedure Act 1986 (NSW) ss 132, 132A Evidence Act 1900 (NSW) s 98(1)
Cases Cited:	Basto v The Queen (1954) 91 CLR 628 Lane v R [2013] NSWCCA 317 The Queen v Baden-Clay [2016] HCA 35 R v Cramp (1880) 5 QBD 307 R v Haydon (1845) 1 Cox CC 184
Category:	Principal judgment
Parties:	Regina Garry Steven Davis
Representation:	Counsel: Mr L Carr (Crown) Mr C Watson (Accused)   Solicitors: Solicitor for Public Prosecutions Ramsland Laidler
File Number(s):	2014/370401

Judgment

1. Garry Steven Davis ("the accused") was arraigned before me on Monday 29 August 2016 and entered pleas of not guilty to the following three counts in the indictment:

1 On 19 October 2013, at Wallsend in the State of New South Wales, did murder Gwendolyne Fowler contrary to s 18 of the Crimes Act 1900 (NSW).

2 On 19 October 2013, at Wallsend in the State of New South Wales, did administer a poison to Audrey Manuel with intent to murder Audrey Manuel contrary to s 27 of the Crimes Act 1900 (NSW).

3 On 29 October 2013, at Wallsend in the State of New South Wales, did murder Ryan Kelly contrary to s 18 of the Crimes Act 1900 (NSW).

2. The victims of these offences were residents in the Mountview ward of the SummitCare aged care facility at Wallsend. Briefly, the allegation brought by the Crown is that the accused, who was a member of the nursing staff, injected Ms Fowler on 18 October and Ms Manuel and Mr Kelly on 19 October 2013 with insulin when there was no medical need to do so. They were each found in a hypoglycaemic state. Medical attention was promptly given. Tragically, Ms Fowler and Mr Kelly could not be saved.

3. This trial has been conducted without a jury. The accused applied for an order that he be tried by a judge alone. The Crown consented to the application. It also consented to leave being granted for the application to be brought out of time. I granted both leave and the application and made a trial by judge order. (See ss 132 and 132A of the Criminal Procedure Act 1986 (NSW)).

Essential facts to be proven

4. In order to prove the charges of murder, it is necessary for the Crown to prove 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 the Crown relies upon is the injection of insulin and the intention the Crown asserts is that the accused intended to cause death.

5. In relation to the charge of administering a poison with intent to murder, it is necessary for the Crown to prove beyond reasonable doubt (in the circumstances of this case) that the accused deliberately injected the substance into the victim. It is also necessary that it be proved beyond reasonable doubt that he did so with an intention of killing the victim.

6. As to the substance administered being a "poison", the High Court of Australia in Basto v The Queen (1954) 91 CLR 628 at 635 approved (implicitly at least) a direction to a jury which defined “poison” as being:

“… a substance which if taken in sufficient quantity would be deleterious and harmful to human life or human health and well-being. It was not necessary for the Crown to prove that the dose administered was sufficient to bring about death; it was enough if the substance was of a nature to do so if administered in sufficient quantity …”

7. In England, “poison” has been held to mean that which, when administered, is injurious to life or health: R v Cramp (1880) 5 QBD 307 at 309 per Lord Coleridge CJ. It has also been held that substances harmless in themselves may become poisons by the time or manner of their administration: R v Haydon (1845) 1 Cox CC 184.

8. There is no dispute that each of the victims were injected with insulin and that this was done with an intention to kill. There is no dispute that where there was no medical need for insulin to be injected, and therefore the consequences would be injurious to life or health, that it would qualify as a "poison". The dispute is focussed upon the issue of who did it. The Crown, of course, says it was the accused in each of the three cases. The accused says it was not him; it must have been someone else.

9. While the Crown says that the same person administered insulin to each of the three victims, the accused says that it may have been more than one person who did so. The accused, of course, does not have to prove anything. He is presumed to be innocent. It is a matter for the Crown to prove what it asserts.

10. The Crown does not rely upon any direct evidence that establishes that the accused was the offender. Its case is purely circumstantial.

11. The High Court of Australia recently summarised the correct approach to be taken in a circumstantial evidence case in The Queen v Baden-Clay [2016] HCA 35:

“[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) 133 CLR 82 at [104]; [1975] HCA 42 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.” (Footnotes omitted)

12. In Lane v R [2013] NSWCCA 317, 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.”

13. In The Queen v Baden-Clay it was said (at [55]) to be erroneous for the Queensland Court of Appeal to have concluded that the respondent was guilty of manslaughter rather than murder by engaging in “mere speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence”.

SummitCare Wallsend

14. SummitCare Wallsend is within a three-level building in Bent Street, Wallsend. It provides beds for 142 residents. As at 17 October 2013 it was almost full; there were only three vacant beds.

15. There are two wards on the ground level, Magnolia and Lavender, and two on the first floor, Mountview and Parkview. There are north and south wings to each ward. Each of Mountview, Parkview and Lavender wards had 35 beds and Magnolia ward had 37 beds.

16. The main public entrance is on the ground floor. On the lower ground floor there is a staff entrance, staff room, kitchen, laundry and other facilities accessible only by staff.

17. Twin elevators serviced each floor and there were fire stairs running between the floors. There were also some external stairs although the evidence about them was not very descriptive and they were not shown on any of the plans.

Staffing

18. Staff at SummitCare worked in three shifts. The morning shift was from 6.30am until 3.00pm. The afternoon shift was from 2.30pm to 11.00pm. The night shift was from 10.30pm until 7.00am.

19. During the morning and afternoon shifts there was a registered nurse ("RN") working on each floor; that is, one in the Mountview and Parkview wards on the first floor and another working in the Magnolia and Lavender wards on the ground floor. A team leader ("TL") and four assistants in nursing ("AINs") were assigned to each ward. Generally, two AINs worked in each wing of a ward but they would provide assistance in the other wing if required. Ms Carolyn Tranter, the operations manager at SummitCare at the relevant time, spoke of some AINs working “short shifts” in the morning and afternoon.

20. On the night shift there was one RN for the entire facility and two AINs for each ward.

21. At the end of each shift there was a handover of keys and a briefing as to events that had occurred in the ward by the outgoing to the incoming registered nurses and team leaders.

22. SummitCare also employed casual staff and staff provided by nursing agencies when it was necessary to fulfil unplanned rostering requirements.

23. Another staffing issue to note is that new AINs were required to work with a more experienced AIN (a “buddy”) to assist their familiarisation with the facility and its residents.

Security

Staff

24. There was a keypad security device at the staff entrance. All staff had the same generic code to operate it to obtain access to the building (“the staff code”).

25. In the staff tea room there was a fingerprint scanning device that was used to record times of entry and exit of permanent and casual, but not agency, staff for payroll purposes.

26. The staff code was needed to access the fire stairs and to access the lower ground floor by elevator.

Visitors

27. There was a keypad security device at the main public entrance on the ground floor. There was a generic code common to all visitors (“the visitors’ code”). This was made available to relatives and friends upon a resident being admitted to the facility and it was changed quarterly. There was conflicting evidence given by witnesses who were visitors as to whether it was necessary to use the code to enter the front door during office hours but it seems likely that it was not.

28. There was a requirement that visitors, including tradesmen and contractors, were to sign a visitors' book at reception on the ground floor. But reception was not staffed outside of office hours (8.30am to 5.00pm) or on weekends and sometimes even during office hours reception staff might be temporarily absent. Signing in and out in the visitors' book seems to have been required but not strictly enforced.

29. If a person wishing to enter the facility did not have the code to enter on the keypad at the front entrance they could press a buzzer which would be answered by staff in the Parkview wing who could see on a video monitor the person who wanted to enter. The front door could be unlocked remotely. Ms Tranter said that staff would usually ask who was buzzing and who they wanted to visit and they would be asked to sign the visitors' book. However, she agreed that "who's buzzing to come into the front door may well be a secondary concern" when staff were busy with more urgent tasks. She also agreed that there was no searching or checking bags of visitors. (T69-70)

30. Contractors and delivery drivers were not provided with a code, even if they attended regularly. Staff permitted them access as needed on each occasion they attended. The same applied in respect of garbage collection from the waste room on the lower ground floor.

31. There was also a keypad security device at the entrance to each of the wards. The generic staff and visitors’ codes were used. There was some inconsistency in the evidence as to when this requirement was put in place but I am satisfied that it was in place before 18 October 2013: see, for example, the evidence of Ms Diane Dean (T140) and Ms Julie Ross (T599-602) and the accused’s statement of 24 October 2013 (Exhibit Y at [11]).

32. A similar keypad security device was at the entry points to the fire stairwells. The staff code was required to access them. There was evidence that some staff used the fire stairs as a shortcut to travel between the wards on the ground and first floors but there was no evidence of residents or visitors doing so.

33. In each of the wards there was a "back of house" area that was secured by keypad. There was a different code, albeit generic, used by staff to access this area. Access by residents and visitors was not permitted.

34. There was some evidence that non-staff had been able to use the staff code. Ms Sutherland, who used to visit her mother in the Mountview ward, said that there was an occasion when her brother gave her what was thought to be the visitors' code but she was informed by a staff member ("Judy") that it was a staff code and that she was not to use it. (T369) RN Esta Luo said that she had seen visitors using a staff code. She agreed in cross-examination that this was "common practice". (T246) When she was asked how she knew this, she said "sometimes I captured them actually putting the staff code". (T247) In re-examination she was asked what she meant by "sometimes" and she referred to a single occasion when she had seen this. On that occasion, the person was recognised by her as being a known visitor to a resident of the facility; somebody who would have been entitled to enter with the use of the visitors' code in any event. (T253) I gained the distinct impression that Ms Luo's initial evidence on the subject overstated the frequency with which this occurred. I accept that it may have happened, but not that often. In the end, I do not believe there is anything significant in this issue.

35. There was a "treatment room" within each of the wards and a key was required for entry. The registered nurse and the team leader held the keys and managers had a master key. A key to a treatment room in one ward could be used to access the treatment rooms in the other wards. The registered nurses also (and only) had keys to the secure cabinet within the treatment rooms in which restricted (S4 and S8) drugs were kept. Everything else in the treatment room, including residents' insulin stored in a refrigerator, was otherwise readily accessible.

36. A key register was maintained. The keys were passed between corresponding staff members in those positions and, when not otherwise in use, were kept in a locked drawer in Parkview.

37. There was an issue raised with most of the staff members who gave evidence as to whether treatment rooms were always closed and locked when not being accessed by staff. No-one admitted to leaving a treatment room open and unattended but a number of witnesses spoke of having seen it. I accept that it occurred from time to time although it does appear to have been a situation that was occasional rather than regular or frequent. There was no evidence that any treatment room was left unattended on 18 or 19 October 2013.

Closed-circuit television (CCTV) cameras

38. There were five CCTV cameras installed and working at the relevant time. (There were two more but they were not working.) There was one over the front public entrance to the facility and four on the lower ground floor: one covering the staff entrance on Raglan Street; one at the deliveries area; and two covering the corridor leading from the staff meal room area and around to the elevators. In short, the CCTV cameras covered all of the possible entry points to the building and particularly to the ground and first floors where the wards were. (T81-2)

No evidence or suggestion of unauthorised access

39. Finally, in relation to security at SummitCare, it is of significance to note there was no evidence that there were ever:

1. people on the premises who did not have a legitimate reason for being there;

2. people who had a legitimate purpose in visiting certain places within the premises but were found to be in other places;

3. staff who had duties to perform in certain places but were in other places without legitimate reason;

4. people who were not members of staff who entered a treatment room; and

5. people who were staff but not registered nurses or team leaders, or people who were not staff members at all, who were involved in giving any form of medication to patients, whether it was required medication or otherwise.

Availability and use of insulin

40. Blood glucose levels were regularly checked for all of the insulin-dependent diabetic residents. According to Dr Tuan Minh Quach (whose evidence will be discussed later), the normal blood glucose level range is considered to be between 4 and 7 mmol/L (millimole per litre). Any level below 4 mmol/L is classified as being hypoglycaemic.

41. Insulin was not accountable so no records were maintained as to usage (aside from patient medication charts) or of stock on hand. It was kept in a non-secure refrigerator in the treatment rooms.

42. In October 2013 it was the policy at SummitCare that only registered nurses could administer injections, including insulin, to residents. A number of witnesses attested to this and the fact that it was previously the case that team leaders could do so as well. The change in policy came about in early 2013.

43. The protocol for insulin administration in place as at 18-19 October 2013 was that a registered nurse would give the injection in the presence of another member of the nursing staff (usually a team leader). They would each identify the patient and verify the correct insulin and dosage and the patient's medication chart would be initialled by both in confirmation.

44. Notwithstanding the change in policy, the accused continued to administer insulin to patients. RN Stephen Zhao said that the accused and one or two other team leaders continued doing so for a week or two after the policy change. SummitCare management issued a further direction that injections were only to be carried out by registered nurses but the accused and a couple of other team leaders persisted, mainly when the registered nurses were busy and they felt they could help out. (T556)

40. Mr Zhao said he had the experience on a few occasions when he went to administer insulin to patients in Mountview, only to be told by the accused that he had taken it upon himself to do so already. (T557)

41. An extract from the medication chart for a particular insulin-dependent diabetic resident of Mountview ward became Exhibit J. There were a number of entries in the week of 16-22 October 2013 where only one person had initialled in relation to the administration of insulin. RN Maria Zubcakova was shown this extract and gave evidence that on 17 October the 7.30am administration had been initialled by the accused and not by her. When she was asked about this by police almost a year later she had no precise recollection but considered it was likely that the accused had administered the insulin on her behalf. She had been busy and the accused had done it in her absence and told her later. She considered the accused was being helpful; she described him as a reliable person who could do it. (T439-440; 443; 447) In cross-examination and despite her other evidence to the contrary, she agreed that this was probably something the accused did after having consulted her. (T444)

42. RN Paulette Hills said that three or four weeks before 18 October the accused had told her that she did not have to worry about giving insulin to a resident of Mountview because he had done so already. She thanked him but cautioned that he was not permitted to do so. (T476)

Ms Gwendolyne Fowler

48. Ms Gwendolyne Fowler was aged 83. She had been married for 55 years when her husband passed away in 2005. As far as I am aware she had three daughters. Ms Fowler suffered from Alzheimer's disease, diabetes mellitus type 2, rheumatoid arthritis and osteoporosis. She was 157cm tall and weighed 43kg. She was a resident of Room 8 in the south wing of the Mountview ward.

49. Ms Fowler was under the care of Dr Lynn Gay, general practitioner. Dr Gay took Ms Fowler off one of her medications (Diamicron 60mg) on 6 September 2013 and asked that nursing staff at SummitCare test her blood glucose levels (BGLs) daily for two weeks. On 19 September Dr Gay found the daily BGL readings (5.2 to 6.5 mmol/L) were within an acceptable range and nursing staff could revert to weekly testing. These readings (6.0 to 6.3 mmol/L) continued to be within an acceptable range.

50. Dr Gay saw Ms Fowler on 17 October and found her to be in “reasonable health given her current medical condition”. There was no reason to expect that on her current medication and dietary plan she would have a significant hypoglycaemic episode. (Exh C tab 5)

51. On the morning of 18 October Ms Fowler's BGL was 5.8 mmol/L.

52. AINs Juneen Avery and Erin Mathews attended to getting Ms Fowler out of bed that morning and assisted her with her "personal cares". She was taken to breakfast in the dining room, walking with the assistance of her walking frame. AIN Mathews fed Ms Fowler and she ate all of her breakfast. AIN Avery described Ms Fowler as "taking direction well and appeared normal" and "her movements were as good a standard as I'd come to expect from her". AIN Mathews noticed nothing untoward about her. (T608-9; 637)

53. After breakfast Ms Fowler was taken to the toilet and then to the lounge room in the south wing. At some stage, and in accordance with her habit, she made her way to sit on a lounge in the foyer of the ward near the nurses' station. At about 11.45am the AINs started to take residents to the dining room in anticipation of lunch which was usually at midday. AIN Mathews assisted Ms Fowler to eat lunch. She ate most of it but appears to have become frustrated with AIN Mathews' encouragement to eat. There is evidence that she made a remark of rebuke and attempted to bite AIN Mathews. (T610; 640) The accused was present in the dining room giving out medications when the verbal outburst occurred and he remarked "Where did that come from?" AIN Mathews was untroubled; she said this would sometimes happen as Ms Fowler would occasionally become frustrated when being encouraged to eat and drink. (T620) AIN Avery, however, thought it was "odd or strange and … out of character for the Mrs Fowler that [she] knew". Notwithstanding this, she thought Ms Fowler appeared her usual self throughout the remainder of the day. (T640) (Ms Avery's shift ended at 3.00pm.)

54. After lunch, Ms Fowler was taken to the toilet and then back to sit in the foyer. AIN Mathews said that when she left her she seemed fine. She last saw her at about 1.45pm. (T620-622)

55. At some stage thereafter Ms Fowler returned to her room. Her daughter, Julie Ross, entered SummitCare at 3.53pm, signed the visitors' book and proceeded to her mother's room. She briefly said hello as she passed a resident near the entry to the ward and popped into a room to say hello to another resident. It must have been close to 4.00pm when she entered her mother's room. The dividing curtain separating the two beds in the room was pulled across. Ms Ross found her mother in a state that prompted her to immediately seek assistance from nursing staff. (Exhibit C tab 11)

56. RN Maria Zubcakova and other staff attended upon Ms Fowler. She was cold, clammy and unresponsive. Her temperature was low and her BGL was found to be 1.1 or 1.3 mmol/L. (Exhibit C tab 9 p.356; 375) In short, she was suffering from hypoglycaemia and hypothermia. The ambulance service was called and Ms Fowler was taken to John Hunter Hospital.

57. Doctors at the hospital confirmed a diagnosis of hypoglycaemia. There was not thought to be any reason for suspicion. The family decided there should be no further investigations or treatment and simply asked that Ms Fowler be kept comfortable. She was returned to SummitCare late that evening for palliative care. This news was passed on at the handover to the Saturday morning shift staff, including the accused. Ms Fowler passed away at about 12.50pm the next day.

58. Dr Gay accepted that Ms Fowler had passed away due to an age related event. On Monday 21 October she signed death and cremation certificates. Later that day she reviewed incoming correspondence from John Hunter Hospital about another of her patients, Ms Audrey Manuel, and noted the similarity of the diagnoses. She contacted Ms Tranter at SummitCare who said she would look into it. She also contacted Dr Quach at the hospital who said it looked like a deliberate poisoning with a large dose of insulin. She recalled the death and cremation certificates and the matter was referred to the Coroner.

59. Ms Fowler’s body was returned from the funeral directors and taken to the Newcastle Department of Forensic Medicine. Dr Jane Vuletic, the Senior Staff Specialist in Forensic Pathology, carried out an autopsy examination on 24 October 2013. She concluded that the direct cause of death was “bilateral bronchopneumonia” with the antecedent causes being “hypoglycaemia” and “insulin overdose”.

Ms Audrey Manuel

60. Ms Audrey Manuel was aged 91 as at 18 October 2013. She had two daughters and a son. She had been a resident in Room 19 in the north wing of the Mountview ward since moving into SummitCare in 2009. She weighed 36kg.

61. Ms Manuel was also under the care of Dr Gay who first saw her in March 2013. She was a dementia patient who also suffered from osteoporosis, depression, glaucoma and gastro-oesophageal reflux. These conditions were being well-managed according to Dr Gay. There was no history of diabetes. (Exh C tab 15) Dr Graham Walter, who was Ms Manuel's treating GP in 2010 to 2013 confirmed that there was no history of diabetes. (Exh C tab 21)

62. Dr Gay last saw Ms Manuel on 17 October 2013. She seemed to Dr Gay to be very well, consistent with her current medical condition. There was no reason to expect a significant hypoglycaemic episode.

63. On the morning of Saturday 19 October she was seen by AIN Jordan Franks at 7.00am and appeared to be fine. Ms Franks assisted her with breakfast and said, “While I was feeding Audrey she appeared in good spirits and her normal mood. She is always happy. She was talking to me.” After breakfast she was walking around the wing with her walking frame as she usually did. (T660)

64. At about 10.30am Ms Manuel was sitting in the foyer area of the Mountview ward. She was asked if she would like morning tea and she responded with an affirmative nod, looking towards the inquirer, Ms Kathryn Tindall of the kitchen staff. (T269) Ms Tindall said that Ms Manuel usually liked a bit of a chat but not on this day; she assumed she was just having a bad day. She said, “Aud was a little confused when I spoke to her, a little different to her normal response. It seemed a little slow.” (T271)

65. AIN Erin Mathews saw Ms Manuel sitting in the foyer at about 11.15am. She described her as being “a little confused”. (T625)

66. Ms Michelle Sutherland arrived at 11.30am to visit her mother, Ms Maureen Wheatley. Ms Wheatley was sitting in the foyer with Ms Manuel. Ms Sutherland gave evidence that Ms Manuel had an untouched cup of tea and a piece of cake on the walker in front of her. She appeared to be dozing or sleepy and did not respond to an attempt to gain her attention. Ms Sutherland decided to watch her for a minute in case there was something wrong. While she sat next to her mother she noticed that Ms Manuel’s right hand began to shake and then it became more pronounced. The accused was in the nearby nurses’ station and he came out, saying, “I just caught that out of the corner of my eye”. His attempts to gain a response were unsuccessful. (T361-365)

67. Other staff came to assist. RN Paulette Hills took charge. She noted that Ms Manuel was drooling, her eyes were open but she appeared on the verge of passing out. She was very pale. At her request the accused carried out full observations which revealed, amongst other things, that she had a low temperature of 33.4˚C and a high pulse. She was taken to her room by wheelchair. A blood glucose reading was taken with a very low result of 1.3 mmol/L. An injection of glucagon raised the level but not acceptably. An ambulance was called and Ms Manuel was taken to John Hunter Hospital. (T464-468)

68. In the Emergency Department at the hospital Ms Manuel was confirmed to be experiencing a hypoglycaemic and hypothermic episode. She was given repeated doses of glucose but the BGL did not respond adequately. The medical registrar, Dr Sven Speich, was advised by a clinical biochemist to carry out blood tests for insulin, C-peptide and glucose. The results were that the insulin level was 21,190 mlU/L (milli-International Units per litre), C-peptide was 0.1 microgram/L, and glucose was 0.8 mmol/L. Based on these results and other clinical observations he concluded that Ms Manuel's symptoms were "caused by the administration of a very high dose insulin in a non-therapeutic setting". (Exh C tab 17)

69. Ms Manuel was maintained on a glucose infusion as her BGL fluctuated over the ensuing five days. She remained under the care of Dr Quach who said that she continued to improve but never attained the same level of functioning she had prior to her admission. She was not able to swallow thin fluid competently and was being fed with thickened food only. She was not able to mobilize independently. Her prognosis was poor. Ms Manuel remained in John Hunter Hospital until 1 November 2013 when she was transferred to Belmont Hospital. She later moved to a nursing home in Waratah. She passed away in January 2015 from unrelated causes.

Mr Ryan ("Greg") Kelly

70. Mr Ryan (“Greg”) Kelly was 80 as at 19 October 2013. He was a widower with two daughters. He had been a resident in Room 24 in the north wing of the Mountview ward, having moved to SummitCare in February 2012. He was 164cm tall and weighed 60kg.

71. Dr Robert Kisonas had been Mr Kelly's treating general practitioner for a short time prior to October 2013. Mr Kelly's conditions included Alzheimer's dementia, ischaemic heart disease and hypertension. Dr Kisonas was not aware of any history of diabetes and said there would be no reason Mr Kelly would be prescribed insulin. (Exh C tab 30)

72. Ms Margaret Martin, daughter to Mr Kelly, last saw him on 14 October 2013 and described him as being "in his usual health". She was not aware of any problems between Mr Kelly and the staff of SummitCare and thought they all seemed to hold him in high esteem. (Exh C tab 32)

73. AIN Jordan Franks checked on Mr Kelly as part of her morning rounds soon after commencing her shift on 19 October 2013. She also fed him his breakfast in his room at about 8.30am and described him as being "absolutely fine". She also described him generally as being "mentally with it"; she was talking to him as she fed him and he appeared to be following the conversation. (T662; 666)

74. During the course of her shift Ms Franks checked on Mr Kelly three or four times and noticed nothing untoward. (T667) After she returned from her lunch break just before 2.00pm she saw Mr Kelly sitting in a chair in his room; he was asleep which was normal.

75. AIN Cheryl Minter assisted Mr Kelly in getting out of bed this morning and helping him to shower. She described him as being "his normal self". (T690) Later that day she brought lunch to his room but when she later returned he had not touched it; he said he did not want any and seemed tired. However, Ms Minter considered this to be "normal"; she said "he likes to sleep". (T687)

76. RN Paulette Hills walked past Mr Kelly's room at about 2.40pm and saw him standing with his walking frame at the end of his bed. He appeared to be fussing around with some of his personal belongings that were on the foot of his bed. There was nothing she observed that gave her any reason for concern about Mr Kelly's welfare. In fact, she noted that he was in apparent good health for the entirety of her shift. (T475-7)

77. TL Michael Webb went to Mr Kelly's room at about 3.15pm and found him sitting in his chair asleep. Mr Webb woke him. He described him as being a little drowsy; "as normal as you would [be] after being woken". He assisted Mr Kelly to have a sip of drink. He then went back to sleep and Mr Webb left. (T517)

78. At about 4.30pm, Mr Webb asked AIN Azeez Bello to go and wake Mr Kelly so he was ready for dinner. Mr Bello returned and said he was unable to wake him. Mr Webb went to Mr Kelly's room and found him still sitting in the same chair. He appeared to be asleep and did not respond to efforts to wake him. Mr Webb described the sound of Mr Kelly's breathing as very congested but he otherwise did not notice anything untoward. He formed the opinion that he was just in a very deep sleep. Mr Webb left, telling Mr Bello to continue trying to wake him. (T522-523)

79. Mr Azeez Bello had a different account, suggesting that Mr Webb had said "Just leave him, he's been like that all day, we tried to wake him up earlier but he wasn't waking up". Mr Bello was asked if he could be wrong about that and he agreed, but he reverted to his original evidence when cross-examined. (T497; 499) Mr Webb denied having said that. Mr Webb impressed as a very careful witness and a conscientious and experienced nursing assistant. I prefer his evidence over that of Mr Bello.

80. AIN Emily McAlpin, a student nurse, started work shortly before 5.00pm, having been called in because of a staff shortage this day. Her first task was to take evening meals to residents who ate in their rooms and her first port of call was Mr Kelly's room. She found him sitting in his chair, chin forward, drooling, and very cold and clammy. She could not rouse him so she went to get the registered nurse. (T395-397) RN Zubcakova said that it was about 5.30pm that she was approached by Ms McAlpin and asked to come to Mr Kelly's room. She gave a detailed description of what she observed; in short, Mr Kelly was hypoglycaemic and hypothermic. His BGL was undetectable and he was given an injection of glucagon which only raised the level to 0.9 mmol/L. (T431ff)

81. There was some confusion arising from Ms McAlpin asking what Ms Zubcakova was giving him; Ms McAlpin having initially thought that Ms Zubcakova said "insulin". I am satisfied that this was an inadvertent error or mishearing on Ms McAlpin's part and nothing turns on it.

82. An ambulance was called and Mr Kelly was taken to John Hunter Hospital. Amongst other things, Mr Kelly was confirmed as being hypoglycaemic. He was admitted and remained in hospital until he passed away on 29 October 2013.

83. Mr Kelly's granddaughter, Ms Kathleen Lowe, visited him in hospital regularly but found that he was completely unresponsive on most days. Ms Lowe said he regained some form of consciousness on his birthday, 24 October. His eyes were open but he was not responding at all to her attempt to converse. He did not recognise his adored 18-month old great granddaughter who Ms Lowe had brought along. On 27th October Ms Lowe visited in the company of her husband and daughter and there was some limited but not meaningful conversation. He showed no apparent recognition of who was visiting him and asked about the whereabouts of his wife who had passed away three years previously. (T769-773)

84. Two detectives visited Mr Kelly on 22 October 2013 and attempted to have a conversation with him about who had given him the injection. Detective Senior Constable Adam Stephen made handwritten notes while Detective Sergeant Little asked questions. The conversation was as follows:

"Little:   Who gave you the injection?

Kelly:   He pulled it out.

Little:   Was it a nurse who injected you?

Kelly:   No. (Shook head)

Little:   Was it a doctor who injected you?

Kelly:   No it wasn't a doctor.

Little:   Do you remember someone injecting you?

Kelly:   (Moaning)

(Little passes Kelly a pen and some paper)

Little:   Can you write down who injected you?

(Kelly tries to write but struggles)

Little:   Was it a man or a woman?

Kelly:   Woman

(Observed Kelly wrote "Coldy")

Kelly:   Injected 3 days ago.

Little:   Did the person have black skin or white skin?

Kelly:   Radio

(Kelly drew symbols that looked like hands and a cross)

Kelly:   Yes syringe I remember.

Little:   Do you know the person who injected you?

Kelly:   I think about it tid [sic] morning.

Little:   Do you know who made you sick?

Kelly:   The other people they saw it there the same situation." (Exhibit X)

85. Dr Jane Vuletic carried out an autopsy examination on 30 October 2013. She found the direct cause of death was "aspiration pneumonia" with the antecedent cause being "insulin overdose". She found no evidence to indicate any acute deterioration of Mr Kelly's chronic medical conditions prior to death. (Exh C tab 23)

Expert opinions

86. There is no dispute that each of the three victims received injections of insulin. Pathology testing confirmed that the insulin within their systems was not naturally occurring within the body. It must have been introduced by way of injection as, according to the experts, insulin is ineffective if ingested and must be introduced parenterally.

87. Dr Tuan Minh Quach is a specialist endocrinologist employed by the Hunter New England Health Service and is the senior medical physician at the John Hunter Hospital specialising in Endocrinology. During the evening of Saturday 19 October he became aware of the presentation of Ms Manuel during the afternoon and Mr Kelly in the early evening, both from the same nursing home and both with hypoglycaemia. When he looked at the two cases together he became suspicious and, contrary to earlier advice given in the individual cases, directed that active treatment for both patients was to be given. (Exh C tab 33 [9]-[11])

88. Dr Quach looked at the pathology results in respect of Ms Manuel and Mr Kelly and found they both had high levels of insulin outside the expected range for a patient receiving insulin. In Ms Manuel's case, the level was "extremely high"; far in excess of a normal therapeutic dose given to an insulin-dependent patient. (Exh C tab 33 [24]-[25])

89. Dr Huy Tran, pathologist and Director of the Clinical Chemistry Division of the John Hunter Hospital, reviewed the pathology results for Ms Manuel and Mr Kelly. Against an expected level of insulin of less than 10 mIU/L in the body of a normal non-diabetic person, he found the levels of 21,190 mIU/L in Ms Manuel's case and 92.6 mIU/L in Mr Kelly's case were excessive and, in Ms Manuel's case, "markedly above [the] acceptable level". (Exh C tab 34 [14])

86. Dr Quach became aware of Ms Fowler's demise when he was contacted by Dr Gay on Tuesday 22 October 2013. He advised her to seek advice from the Coroner in relation to withdrawing the death certificate she had issued. (Exh C tab 33 [44]) I have mentioned that this was done and that an autopsy was performed on 24 October 2013. Samples of vitreous fluid and blood were sent to Dr Tran's Clinical Chemistry Division for analysis. There was found to be an insulin level of 3.7 mIU/L in the vitreous fluid and 532.4 mIU/L in the blood. Dr Tran was not able to form any conclusion about the former because of the unavailability of comparative data. In relation to the latter, it was his opinion that the most likely cause for the high level was the external administration of an "extremely high dosage". Further, as post-mortem blood is subject to decay with time, and the sample was taken four days after death, he considered that the actual level at the time of death may have been significantly higher. (Exh C tab 34 [23]-[28])

87. Dr Xiaomin Song, an analytical biochemist gave evidence about testing samples from each of the victims at the Australian Proteome Analysis Facility. As an attempt to identify the type of insulin injected it was far from definitive; for example, no attempt was made to test for any long-acting only types of insulin, only short-acting and mixed types (and only some of those).

Timeframe for when the injections occurred

92. The most important point of the expert evidence was to identify when each of the victims were injected with insulin. There was evidence that insulin comes broadly in three forms: short-acting, long-acting or a combination of the two.

Dr Tuan Minh Quach

93. Dr Quach was of the opinion that both Ms Manuel and Mr Kelly received direct injections of high dosages of long-acting insulin. The reasons underlying this opinion are set out in his report: Exhibit C tab 33 [30]. He also said that long-acting insulin acts to lower blood sugar levels within two to four hours of being administered. (Report at [28])

Dr Huy Tran

94. Dr Tran's opinion in relation to Ms Manuel and Mr Kelly was that each received an injection of (or, I assume, including) long-acting insulin which was administered "approximately between four and six hours prior to the patients showing the relevant symptoms". (Exhibit C tab 34 [30])

95. In relation to Ms Fowler, Dr Tran said the high level of insulin found in the post mortem blood sample was "most likely" caused by the external administration of an extremely high dosage. He did not say anything about a timeframe. (Exhibit C tab 34 [28])

Professor Dennis Yue

96. Professor Dennis Yue is a Professor of Medicine and Endocrinology based at the Diabetes Centre, Royal Prince Alfred Hospital, Camperdown. He has been a specialist in diabetes for the last 42 years. In a statement made on 4 February 2014 he expressed the opinion that it was almost certain that a long-acting insulin had been injected sometime within the 24 hours before the victims developed low blood glucose levels and it was likely it occurred within 12 hours. He said that due to a number of variables of which he was unaware he was unable to be more precise. (Exh C tab 36 [5](1))

97. Professor Yue gave evidence in the trial. He confirmed that the opinion expressed in his statement was based upon incomplete information. The Crown Prosecutor put to him some further information in relation to each of the victims (age, weight, medical condition, medications etcetera). He expressed the view that Ms Fowler was almost certainly injected "considerably less than 24 hours and almost certainly after breakfast that morning. I would put it down to several hours". (T577)

98. Professor Yue also said that if the reported irritability of Ms Fowler during lunch was out of character, that would indicate that she was probably already mildly hypoglycaemic at that time; it was consistent with a progressive onset of symptoms.

99. Professor Yue was quite guarded in basing any opinion on Ms Fowler's post mortem samples given there was little data available against which to make a comparison.

100. In relation to Ms Manuel, Professor Yue commented about the very high level of insulin found when a blood sample was taken at 8.45pm on 19 October and considered that she must have received significantly more insulin than would normally be administered to a diabetic patient. He considered in her case she received an injection within six to eight hours before she displayed hypoglycaemic symptoms at 11.30am and he favoured the six hours more than the eight. If the injection included a mixture of short and long acting insulin, it could be that it was given anything between half an hour and six hours prior to 11.30am. (T582-5)

101. In the case of Mr Kelly, after being informed of further pertinent details, Professor Yue considered that he could have received an injection within six to eight hours prior to the time he started to exhibit symptoms at about 3.00 to 3.30pm. (T590-1)

Professor John Carter AO

102. Professor John Carter AO is a Consultant Endocrinologist and Clinical Professor of Endocrinology at the University of Sydney. He has 44 years' experience in endocrinology. In a report dated 6 June 2014 he expressed the opinion that each of Ms Fowler, Ms Manuel and Mr Kelly had been injected with a large dose of either a long-acting insulin or a mixture of short-acting and long-acting insulins within eight hours, and most likely between half an hour and six hours, of the development of hypoglycaemic signs.(Exhibit C tab 37 [5])

103. After being provided with further information in relation to each of the victims, Professor Carter confirmed his view that in each case the injections were given within eight hours; in Ms Manuel's case, likely within three to four hours of 11.30am, and in the case of Ms Fowler and Mr Kelly, from breakfast time onwards.

104. Mr Watson, counsel for the accused, did not take issue in his closing submissions with the proposition that the injections must have occurred within a timeframe of up to eight hours prior to the display of hypoglycaemic symptoms. His only contention in relation to this evidence was that with a more thorough investigation, in this respect engaging a much more time-consuming and expensive analysis of every type of insulin available in the country, it might have been possible to identify a more precise (shorter) timeframe. That might be so, but the reality is that there is the conservative eight hour timeframe upon which the Crown has developed its case and which is not disputed.

Conclusion

105. I am satisfied on the basis of the reasonable uniformity in the expert opinions that the injections occurred within eight hours of the victims displaying significant symptoms of hypoglycaemia. It seems to be quite likely that the period was shorter than that but it seems safer to act upon the eight hour period. That means that Ms Fowler was injected sometime after about 8.00am on Friday 18 October; Ms Manuel was injected sometime after about 3.30am on Saturday 19 October; and Mr Kelly was injected that day sometime after about 7.00am.

Investigation

106. Police executed a search warrant at SummitCare on 22 October 2013. They were provided with all available records that would allow the police to determine who was in attendance on 17 - 19 October 2013 and at what times. The records included a list of all residents, staff rosters, staff attendance times as determined by the fingerprint scanner, wage records, the visitors' sign in-out book, medical records, restricted drug registers, a signature list to assist in determining authorship of handwritten medical records, a list of persons who were diabetic or insulin dependent, plans of the building, a key register, a contractor sign-in report, and the CCTV hard-drive.

107. Before the records were handed over to police they were cross-checked by SummitCare staff to ensure their accuracy. (Tranter T63; Galbraith T80)

108. Police did not conduct a physical search of the facility. (T66) The officer in charge of the case, Detective Sergeant Matthew Faber, referred to the delay between the events on 18 and 19 October, the matter coming to the attention of police on the evening of 21 October, and the search warrant being executed the following day. He described it as a "contaminated scene". Normal operations had ensued in the intervening period. Cleaners had performed their usual function. The main sharps container in the Mountview ward was examined but found to be empty of syringes. (T792)

109. Ms Tranter said that the manager of "care and lifestyle", Ms Deborah Cardos, had responsibility for the stock of insulin on hand. (T73) Detective Senior Constable Graham Galbraith said that Ms Cardos had been spoken to but had declined to make a statement after receiving legal advice. (T84)

Spreadsheet - Exhibit D

110. A spreadsheet which became Exhibit D was prepared by police in order to show the times at which various people were in attendance at SummitCare from 5.00am on Friday 18 October to 6.00pm on Saturday 19 October. This was the period covered by the CCTV footage that was made available to police. There was no dispute with the accuracy of the content of this spreadsheet, although some minor typographical and inconsequential errors were noted during the trial.

111. Preparation of the spreadsheet was undoubtedly a very time-consuming process. For example, it involved trying to identify every person who was seen to enter and leave the facility; 319 in total. Police were largely successful in doing so but, in the end, there remained 35 people who could not be identified. However, the times they entered and left could be determined and it was established that each of these people only attended on one of the two days in question. (T82-84)

112. All of the people who were identified were spoken to, shown still photographs downloaded from the CCTV footage so they could confirm the identification and statements obtained. (T83)

113. Detective Senior Constable Galbraith gave evidence about this part of the police investigation. There was no challenge to the thoroughness or accuracy with which it was carried out. Indeed, the detective was not cross-examined at all. Thus the Crown submitted (T811.5), and I accept, that if the "one-perpetrator" theory is accepted (as to which, see below), the 35 unidentified people can be excluded.

The Crown's timeframe

114. Detective Sergeant Faber said that police considered the possibility of more than one person being responsible for administering the injections but as the investigation progressed they determined upon the theory that only one person was responsible.

115. Through a process of elimination based upon that theory, and upon the expert opinions that the injections occurred no more than eight hours prior to the victims being found with symptoms, it was determined that there were potentially 25 people, including the accused, who could be responsible. These people were recorded on the spreadsheet (Exhibit D) in red italics. (T88) A more concise spreadsheet showing only the persons present on both days is annexed to this judgment. CHART (31.6 KB, xlsx)

116. Statements were taken from all of the 25 people and they were checked against CCTV material to try and chart their movements through the period of their attendance on 18 and 19 October.

117. Detective Sergeant Faber gave the following compendious explanation as to how police eliminated people from suspicion:

"Q. Is it your evidence that if a person was present at Summit Care at any time between, what’s your timeframe--

A. 5am.

Q. 5am on the Friday, the--

A. 18th.

Q. And 6pm on Saturday the 19th, that will be shown in the spreadsheet?

A. Correct.

Q. And as best as your inquiries are able to tell you, they were present during the times indicated on the spreadsheet?

A. Correct.

Q. You were able to say as a result of that, that outside of those times, they were not present?

A. That’s correct.

Q. And is it also the effect of your evidence that if a person was present on one day, but not the other day, they’re present on the Friday, not the Saturday or present on the Saturday, not the Friday. You’ve eliminated them on the basis that they could not have been responsible in your view, in the police view, for all three incidents?

A. That’s correct." (T130)

The accused's statements to police (October – December 2013)

118. The following is derived from statements made by the accused to police on 24 October (Exhibit U), 6 November (Exhibit V) and 10 December 2013 (Exhibit W).

119. The accused was aged 26 as at October 2013. He started a traineeship as an Assistant in Nursing at St Joseph's Nursing Home at Sandgate in 2006. He worked at Uniting Care Koombahla at Wallsend from 2007 to 2009. He then took a casual Team Leader position at Redhead Gardens Nursing Home where he worked for six months in 2009 before taking a position at William Cape Gardens Nursing Home at Wyong where he remained before taking up his position at SummitCare, Wallsend in September 2011. (Exhibit U [3]-[5])

120. In October 2013 the accused was employed as a Team Leader Certificate IV Aged Care worker. He worked 6.30am to 3.00pm shifts three days one week and four days the next. In his statement of 24 October 2013 he said that he had worked in the Mountview ward for more than six months with the same staff and his duties included:

●   Monitoring staff

●   Medication rounds

●   Simple wound care

●   Resident progress notes and related documents

●   Resident assessment regarding care

●   Resident funding assessments

●   Liaising with doctors

●   General observations of residents

121. The accused said he carried out a medication round at 7.00am until about 8.30 to 9.00am. He then assisted the registered nurse with a Schedule 8 drug round. He carried out another medication round at about 12.00pm until 1.00 to 1.30pm. He said he regularly administered medications to Ms Fowler, Ms Manuel and Mr Kelly including on 18 and 19 October. None of them received any form of medication by injection. (Exhibit U [6], [9]-[10], [14], [18]-[21], [23])

122. The accused said that up until early 2013 the Certificate IV Team Leaders were permitted to administer insulin to residents. This was done via a "wind up insulin pen". (He gave a detailed description as to the procedure.) (Exhibit V [12]-[14])

123. In January 2013, management directed that all insulin injections were to be administered via a needle and syringe and he said this was something that a team leader was not authorised to do. Since the change in policy he had "not injected any patients with any substances", "except for the very odd occasion" which he estimated at once or twice a month. This would occur when the registered nurse was busy and had asked him to do it for them. He said that the last occasion this occurred "would have been sometime around the start of October 2013". The only patient that he could recall being asked to inject with insulin since January 2013 was Mr Rex Joyce. (Exhibit V [15]-[17], [19])

124. The accused nominated RN Stephen Zhao and RN Maria Zubcakova and "a couple of casual registered nurses" as those who had asked him to administer insulin. He would do so by way of needle and syringe, drawing the insulin up from a vial and injecting it to the front stomach area of the patient. (Exhibit V [18])

125. The accused described Ms Fowler, Ms Manuel and Mr Kelly as "not problem residents". He said their behaviours were consistent with similar people in SummitCare. They seemed to live a trouble-free life in the facility and did not have any issues that caused him concern. (Exhibit U [24])

Ms Gwendolyne Fowler

126. The accused said in his second statement that he gave Ms Fowler her morning medication on 18 October at about 7.45am in the dining room. In the third statement he said it was at about 7.30am. (Exhibit V [21]; Exhibit W [14])

127. He again saw Ms Fowler at lunch in the dining room and specifically recalled that she attempted to bite the AIN who was trying to feed her. He saw her at about 2.20pm when she was sitting with Ms Manuel on a lounge near the nurses' station; they seemed to be chatting and were fine. He saw them again in the same place as he left for the day at 3.00pm and again "both appeared to be in good health". When he returned to work the next morning he was told that Ms Fowler had taken some sort of a turn and that she was in a palliative state. He checked on her during the course of the morning to ensure she was comfortable; the last occasion being at around 10.00am. (Exhibit V [21]-[25])

Ms Audrey Manuel

128. The accused said he gave Ms Manuel her morning medication at about 8.30am on 19 October in the dining room. He said, "She just seemed fine and was her usual self". She did not complain of any unusual pain or of feeling unwell. He said, "there was nothing that I saw that morning that gave me any indication that Audrey was unwell". (Exhibit W [28]-[31])

129. The accused saw Ms Manuel shortly after 11.00am on 19 October when she was walking down the hallway of the north wing towards the foyer area. It was Ms Manuel's habit to walk around with her walking frame and to sit on the lounge near the nurses' station. She was sitting there when she "took her turn" at about 11.30am. The accused was in the nurses' station at the time and went to assist. It was while attending to Ms Manuel that he was informed that Ms Fowler had passed away. (Exhibit U [22]; Exhibit V [26]-[28])

130. The accused said that his initial assessment was that Ms Manuel had suffered "a TIA which is a type of small stroke". He said:

"It was my belief that despite being taken to hospital in a poor condition there was nothing to have suggested to me at that time that she would pass away. It is my experience that some patients can have a TIA or neurological events and can make a good recovery." (Exhibit V [33])

Mr Ryan Kelly

131. The accused said that he gave medications to Mr Kelly at around 8.00am on Saturday 19 October (or 8.40am according to the third statement). In the second statement, the accused said that Mr Kelly "seemed his normal self and was generally fine". Aside from his medical conditions he was "in otherwise reasonable health". In the third statement he said that Mr Kelly did not complain of any unusual pain or of feeling unwell and that "there was nothing that I saw that morning that gave me any indication that Ryan was unwell". He described Mr Kelly as a patient "who's level of health was basically the same all of the time". He would walk around and wander a bit but for the most part sit in his room and read, or just sleep. (Exhibit V [29]; Exhibit W [22], [24)

132. The accused gave Mr Kelly his lunchtime medication in his room at about 12.15pm (second statement) or 12.50pm (third statement) as he ate his lunch. Mr Kelly seemed "his normal self" and "there was nothing that I saw or he told me which indicated to me that he was in anyway unwell". He last saw him at around 2.15pm standing at the end of his bed appearing to be fiddling or fussing around with some paperwork. He said Mr Kelly "seemed okay to me at this time and… gave me no reason to believe that he was about to take ill". He said:

"At the time that I left work around 3.15pm I had fully expected to come back to work the following day to find Ryan in his room in the same medical condition that I had last seen him when I left work the previous day. I had no reason to believe that Ryan's medical condition was anything other than it had been for the months before. I had no reason to consider that within a number of days Ryan would be dead." (Exhibit V [30]-[31]; Exhibit W [25]-[26])

133. The accused said that when he returned to work at 6.30am on Sunday 20 October he was told at the handover that Mr Kelly had taken a turn; a test revealed that he had a low blood sugar level; and that he had been taken to hospital. (Exhibit V [29])

The accused's interview with police (August 2014)

134. The accused was interviewed by Detective Sergeant Faber and Detective Senior Constable Evans on 21 August 2014. He was at the police station by invitation but he was cautioned in the usual way. It was a very lengthy interview; over seven hours. By agreement between the parties it was edited and about a third of the recording was tendered. (Exhibits Y and Z)

134. The demeanour of the accused was reasonably consistent throughout the interview. He impressed as placid and softly spoken and he remained in control even when put under some pressure by the questioning (and I do not mean that in any pejorative sense).

135. One major topic discussed in the interview was the exchange of text messages between the accused and Ms Debbie Wilson, Ms Raylene Collins and Ms Monique Christensen. I will refer to these shortly.

136. The accused was asked about working at SummitCare generally and in the Mountview ward in particular. He described the work as busy but mainly from the start of his shifts at 6.30am until 1.00pm. (Q 877)

137. There were questions about a search warrant that was executed at the accused's residence on 5 December 2013. (Q1034-1041) Curiously, there is nothing in the edited form of the interview that is before me that deals with some seized items that were tendered: a copy of a chapter from "MIMS Full Prescribing Information" dealing with Human Insulin, about 15 syringes and about the same number of needles. (Exhibits AC and AD)

138. In another part of the interview in which Detective Sergeant Faber asked the accused what he thought had happened in relation to the injection of Ms Fowler, Ms Manuel and Mr Kelly (Q1654ff) the accused clearly struggled to provide an answer (which is, of course, equally consistent with his innocence). He said, in effect, that he could not think of somebody doing such a thing. (Q1664) He did not think that any of the victims would have been capable of injecting themselves. (Q1729-30)

139. The accused thought each of the victims might have questioned somebody giving them an unexpected injection, even himself. (Q1736ff) He denied having injected any of them for any reason. (T1755)

140. He doubted that a fellow resident might have injected the victims. (Q1783-93) It was possible, he thought, that a visitor to the facility might have. If the person was a stranger it would be less likely but at busy times they might go unnoticed. (Q1794-1806)

141. Detective Sergeant Faber went through a list of names of staff the police had identified as being present at SummitCare in the relevant period in which the injections were thought to have been administered and asked the accused whether he had any reason to suspect them. He did not suggest that any of them could be responsible, although there were some he did not know very well. Mr Watson submitted that this was indicative of innocence in that a guilty person would be likely to deflect responsibility on to somebody else. (T844) However, another way of looking at it is that a person dishonestly deflecting responsibility onto to somebody who could be shown to be innocent might then attract further suspicion to themself.

142. The accused could not think of any reason why somebody would inject the three victims. They were "perfect residents"; "easy to look after"; and "they weren't really a bother". (Q2087)

143. Detective Sergeant Faber asked if the accused thought that the perpetrator could have had euthanasia in mind and he did not completely dismiss the notion:

"They were up and down all the time but you know Ryan Kelly one day he was fine the next day he was bad, one you know, it's probably the same for all three of them they were up and down all the time but you know somebody could, somebody you know but yeah." (Q2090)

145. The accused was asked how he felt about being on the list of possible perpetrators:

"Q2112   How does it make you feel to be on that list?

A   Um I don't know, a bit depressed because you know I shouldn't be on it but you know I'm on it.

Q2113      Why shouldn't you be on it?

A      'Cause I know that I didn't do anything like this."

The accused's second interview with police (December 2014)

146. The accused was arrested at his home on 17 December 2014. He largely exercised his right of silence and, of course, no adverse inference can be drawn from the fact that he did so. (The same applies to the fact that he did not give evidence in the trial). He did, however, tell police, "I didn't do it"; specifically, he did not kill Ms Fowler or Mr Kelly or attempt to kill Ms Manuel. (Q 11; 35-37) He also reiterated that he could not think of anyone who could have committed the offences. (Q63)

Text messages

Exchange of texts with Ms Debbie Wilson

147. Ms Wilson was an AIN at SummitCare. She worked a shift from 10.30pm on Thursday 17 October to 7.00am on Friday 18 October and a similar shift on the night of Friday 18/Saturday 19 October. She worked in the Parkview ward on both shifts.

148. Ms Wilson knew each of the three victims; she having cared for them at some stage. She was working when Ms Fowler was returned from John Hunter Hospital for palliative care late on the night of Friday 18th. She had known Ms Fowler for a number of years and was concerned for her so she went over to the Mountview ward to see her.

149. Ms Wilson knew that the accused was working the morning shift in Mountview ward on Saturday 19 October. At 11.14am, Ms Wilson initiated the following text message exchange with him (Exhibit S):

11.14am	Ms Wilson	Hey Garry how's gwen? 1 a shift 4 would b a record 4 leader leader lol …
11.21am	Accused	Happens in 3. Shes blue as but still breathing
Ms Wilson	Lol ok thanx – who do u think is no 3? John S or Doris M?
11.27am	Accused	Bell or Kelly
Ms Wilson	Oh yeah 4got bout them 2 – can u txt me plz if she goes?
Accused	Yep will do
11.29am	Ms Wilson	Thanx
1.23pm	Accused	Gwen gone. Audrey no3
2.41pm	Ms Wilson	Thanx

150. Ms Wilson gave evidence in which she explained what she meant by the messages she sent and provided her understanding of what the accused said in his. Caution is necessary here; it is the accused’s understanding of what she said and what he was conveying to her that is important. The same applies in relation to Ms Collins who I will mention next.

151. Ms Wilson explained that in the first message the words "leader leader" should have been "team leader". She said she meant by that message "that there has never been four residents go in one unit like four days … pass away in one unit four days running, if you, yeah, know what I mean. … So it would be a record for any team leader". (T741)

152. Ms Elizabeth Eifler had passed away at about 2.00pm on 18 October. (Exhibit K) The accused was aware of that fact. (T656) Ms Wilson assumed that Ms Fowler's passing was imminent; hence her suggestion as to “no 3”: either "John S" or "Doris M". (T741) That was a reference to John Sgourmallis and Doris Mather, both of whom, according to Ms Wilson, were quite ill; they had "the same sort of really chest bad pneumonia type chest infections". (T743)

153. The accused's suggestion that "no 3" might be "Bell or Kelly" was understood by Ms Wilson (and by the accused – see below) to be references to Ms Ethel Cliff (known as "Bell") and Mr Ryan Kelly, both of whom, according to Ms Wilson, were also quite ill. She said that Ms Cliff "was on a permanent oxygen concentrator and wasn't expected to have a very fruitful long life when she entered" and she understood that Mr Kelly had "a really, really bad chest infection" and "we were told that it had turned to" pneumonia. (T744) Ms Wilson’s stated understanding of the condition of Ms Cliff and Mr Kelly is not borne out by other evidence.

154. I pause to note that Mr Sgouromallis was under the care of Dr Gerald Mah from July 2013 to February 2014. He was seriously ill; he was being fed through a tube directly to his stomach and he had a urethral catheter in place. He was wheel chair bound and eventually bed bound. In August 2013 he was desperately ill and was placed in palliative care. However, "over a few weeks he rallied round". He transferred to the care of another doctor in February 2014. (Exhibit AP)

155. Ms Mather was under the care of Dr Praful Patel. He saw Ms Mather on 4 October and 5 November 2013 and on both visits she was in perfectly good condition. Her most recent blood tests were normal and she had no issues at the time of those visits. (Exhibit AO)

156. Ms Cliff was under the care of Dr Robert Kisonas. As best he could recall when asked to make a statement on 4 December 2014, Ms Cliff was experiencing no life threatening condition in September – October 2013 and he did not anticipate any actual event in the immediate future. (Exhibit AN)

157. Ms Wilson was unable to explain her reference to "4" in the first message. She agreed that Ms Eifler and Ms Fowler made up two but she was unable to explain why she thought there might be four residents who might pass in consecutive shifts. (T746-7) She also gave evidence that in fact there had been no occasion when three residents had passed in consecutive shifts. (T747.42)

158. Ms Wilson thought the accused's reference to "Audrey no3" was to Ms Audrey Manuel being next to die but she did not know that Ms Manuel was sick. (T749)

159. In cross-examination, Ms Wilson explained that the language in these messages constituted "black humour"; "It's our way we deal with things every day"; a "coping mechanism". She said that no disrespect was intended. (T750-1)

Exchange of texts with Ms Raylene Collins

160. Ms Raylene Collins was an AIN who worked the night shifts on 17 to 19 October 2013 in the Parkview ward with Ms Wilson. She said she became aware that within that period some residents had become unwell and some had passed away. She was aware that Ms Fowler, who she did not really know, had come back to SummitCare for palliative care. (T756-7)

161. At 4.13pm on Saturday 19 October Ms Collins received a text message from the accused which stated:

"Gwen nt and audrey was sent to hospital. Comes in 3." (Exhibit W annex p.1693)

162. Ms Collins had earlier received a message from Ms Wilson telling her that Ms Fowler was "blue, breathing" and another telling her that Ms Fowler was "gone". (T761) She did not know what "nt" in the accused's message meant but in discussion with detectives she came to accept it meant "went" or "gone". (T760)

163. Ms Collins' understanding of "comes in 3" was that:

"In nursing it always comes in threes, like three deaths, and everybody says it and we all do it, and if there's two, like two passed away recently, so everyone was trying to guess who the third was, it just happens, it just comes in threes". (T761)

164. Following the accused's message there was this exchange on the Saturday evening (T762-3):

7.38pm	Ms Collins	True lets hope the third is pv 6.
8.00pm	Accused	Its gonna be audrey it was hectic
8.02pm	Ms Collins	I can live in hope

165. Ms Collins explained that "pv 6" was a reference to the resident in Room 6 of the Parkview ward.

166. Like Ms Wilson, Ms Collins also explained the reference to "comes in three" as something that is discussed in nursing circles: "It's just done in nursing, like I have other friends and even my family work as nurses and they all do it. We all do it." She agreed in cross-examination that it might not appear tasteful but it was "just how we de-stress". It was not evil or sinister, nor indicative of the care given to patients. (T764-5)

Exchange of texts with Ms Monique Christensen

167. Ms Monique Christensen was a friend of the accused. She had the following exchange of text messages with him on the evening of Saturday 19 October 2013 (Exhibit T):

10.07.07pm	Accused	I don’t even wanna go to work tomorrow
10.07.42pm	Christensen	I don’t blame you after today
10.08.14pm	Accused	But should be good seeing we have 3 in hospital 2 dead. One on leave. Saves me 30-40mins during pill round etc.
10.10.07pm	Christensen	Omg that’s just horrible I would be crying I don’t deal with death very well
10.12.42pm	Accused	Adrenaline kicks in. Best feeling
10.13.41pm	Christensen	Lol I would be on the floor bawling your good at your job
10.15.49pm	Accused	I just enjoy what I do

168. Ms Christensen later asked the accused what he meant by "adrenalin kicks in". She said, "He told me that his work training was kicking in". (T767)

The accused's explanation for the text exchange with Ms Wilson

169. After the accused had made his statement on 6 November he was shown the series of text messages he had exchanged with Ms Wilson. He was asked about having said in that statement that Mr Kelly was apparently well when he, the accused, left SummitCare at the end of his shift as compared to having referred to the prospect of Mr Kelly dying in the text message some four hours earlier. He said:

"Look, I understand there's a contradiction between what I've said in my statement and those text messages and I don't really have an answer to it from the fact that it might look bad to you but I can't explain it." (Exhibit Z at Q116)

170. He was also asked about the apparent contradiction in having said in the 6 November statement that he thought Ms Manuel had suffered a TIA or a stroke but having suggested in texts sent to Ms Wilson and Ms Collins that she might die. He said:

"Well, look, I understand where you're coming from. They look suspicious but they're not meant to be that way and I can't explain it further." (Exhibit Z at Q 123-126)

171. He was asked to make another statement on 10 December 2013 in order to explain the apparent contradictions. (Exhibit W) In relation to the reference in the texts to Ms Ethel Cliff he said she had not been well in the week leading up to 19 October 2013. He knew this from the handover briefing that he received on Thursday 17 October. He could not recall specifically what he was told, or who told him; just that he was informed that she had not been well all week. (Exhibit W at [8])

172. In the shift handover report for the morning of 17 October (Exh AJ) there is mention of "clinical concerns" in relation to 11 residents but Ms Cliff is not one of them. There is no mention of any concern for her in any of the subsequent shift handover reports aside from a mention in that for the handover at 3.00pm on Friday 18 October which simply says, "PV bleeding, examination done by Dr Kisonas. Monitor only as per Dr Kisonas". (Exhibits K, L, AK, and AL) However, Mr Watson referred to the fact that the accused said he was “told” about Ms Cliff’s condition and so it need not be expected to be found mentioned in a written handover report. That is a possibility, particularly if Ms Cliff’s condition was a continuing situation and she did not experience a medical event during a shift that would be specifically emphasised to the incoming shift.

173. In relation to the suggestion in a text to Ms Wilson that Mr Kelly might be "no 3", the accused explained:

"I made this comment due to him always being up and down health wise. There is nothing else I can add to that. I cannot explain it any further." (Exhibit W [9])

174. Later in his 10 December 2013 statement the accused reiterated what he had said about Mr Kelly in the 6 November statement about him being apparently well when given his morning and lunch time medications on 19 October:

"At no time whilst I was administering Ryan that morning dose of medication did he complain of any unusual pain or of feeling unwell. There was nothing that I saw that morning that gave me any indication that Ryan was unwell. …

I can recall … that when I gave Ryan his midday tablet which was at about 12.50pm, he was again his normal self. Again there was nothing that I saw or he told me which indicated to me that he was in any way unwell." (Exhibit W [24], [26])

175. The accused said much the same about Ms Manuel when he gave her her morning medications on 19 October: e.g. "There was nothing that I saw that morning that gave me any indication that Audrey was unwell". (Exhibit W [31])

176. The accused confirmed that he understood "1 a shift 4 would b a record", "Happens in 3" and that "Bell or Kelly" might be number 3 were references to the number of patient deaths. (Exhibit W [10])

177. In relation to his text later in the afternoon of 19 October, "Gwen gone. Audrey no3", he said:

"I considered that in light of the medical episode that I had seen Audrey take on that day it was likely that she was going to be the third to die." (Exhibit W [11])

178. At an advanced stage of the lengthy interview, on 21 August 2014, Detective Sergeant Faber summarised a number of circumstances that he suggested pointed to the accused being the perpetrator. In this context there was the following exchange in which the accused spoke of his text to Ms Wilson at 1.23pm "Gwen gone. Audrey no3" (with the detective repeatedly referring to the time as "1.10pm"):

"Q2130But given the fact as I said you have got the opportunity, the ability, the availability, the knowledge and I guess the worst thing for you is you've predicted two of these deaths before they've occurred, at 1.10pm Audrey Manuel had just been placed into an ambulance and in your statement you said that she suffered a TIA and then you expected people like herself and based on your observation that would recover from that - - -

A   Mmm.

Q2131   - - - correct?

A   Correct.

Q2132   Yet in your text messages at 1.10pm having known that she had only just been placed in an ambulance you've said, "She's dead" - - -

A   (Indistinct)   

Q2133   - - - or words to that effect - - -

A   But - - -

Q2134   - - - how else could you interpret that text message?

A   - - - we don't, well we don't know what happens to people you know there's heaps of people we send off to hospital all the time and we're sending them for something totally different and it's something else and we only can, but you know you send people to hospital and you just assume you know, well - - -

…

Q2136   I don't see how you can - - -

A   I know what the text messages say.

Q2137    - - - at 1.10pm - - -

…

Q2138   - - - my interpretation is you predicted that she was dead and is it the case that possibly you knew she was dead because you knew she was full of a massive dose of insulin - - -

A   No.

Q2139   - - - whereas nobody else knew that?

A   No I didn't know that at all, I didn't know anything like that I thought she had a TIA at the time that's all.

Q2140   Then why did you say at 1.10pm, "She's dead"?

…

Q2141   - - - "she's gone"?

A   (No audible reply)

Q2142   What does, "She gone", mean?

A   She's like gone to hospital I, I don't know if she's gone, I don't know if she was gunna be whatever - - -

Q2143   We've been, we've been - - -

A   - - - it's got nothing to do with it.

Q2144   - - - through, I think we've been through these text messages and I think you agreed yourself that yes, that means that she was going to die. You don't agree with that now?

A   Well we send people to hospital all the time, we don't know if they're gunna come back or not."

179. The accused was then asked about his text to Ms Wilson at 11.27am "Bell or Kelly" (with the detective repeatedly referring to the time as "11.15am"):

"Q2145… How do you explain predicting Ryan Kelly's death at 11.15am?

A   Just it was a conversation - - -

Q2146   The conversation was, "Who's next"? That was the question that you were asked and out of 35 residents you've named Bell or Ryan Kelly - - -

A   Mmm

Q2147   - - - is that just a coincidence that Ryan Kelly was the next victim?

A   (No audible reply)

Q2148   Is it also a coincidence that Ryan Kelly died of the same causes that Audrey Manuel died of and that Gwen Fowler died of, so in other words those three deaths are definitely linked and that you've predicted his death next - - -

A   No.

Q2149   - - - at 11.15am before he showed any symptoms at all of being ill?

A   No it was just in the conversation of the text that's all it is - - -

Q2150   But why, why

A   - - - people's names.

Q2151   Why did you predict him or Bell?

A   I don't know because, their health's always up and down like Bell wasn't well that week and Ryan Kelly's good one day and bad the next so - - -

Q2152   Was he bad that day?

A   Well he was alright but you know but he declined heaps over the time.

Q2153   Did he decline that day at all before you finished your shift?

A   No like when I last saw him at, well when I was walking up the hallway to do the checks it was like 2.15, 2.20 and he was tiddling around in his bedroom so.

210. Ms Joanne Reay visited her mother, Ms Melda Reay, in the Parkview ward on both days. On the Friday she was there from about 3.00pm until just after 4.00pm. She was accompanied by her son. They remained in Parkview until they left. On the Saturday she attended with her son from 9.15 to 9.23am but this was only to collect her mother to take her out for the day. She did not go anywhere else in the facility. Accompanied by her son she returned her mother to Parkview and was only in the facility, and did not go anywhere other than Parkview, from 2.36 to 2.46pm. Ms Reay said that she had never met Ms Fowler, Ms Manuel or Mr Kelly. (T171-3)

211. Ms Eunice Robinson was a regular visitor to her husband Mr James Robinson in the Lavender ward. She was there on the Friday from about 10.45am until about 2.45pm and again on the Saturday in a similar period. She remained with her husband at all times. Sometimes, if it was a nice day, they would go out to one of the garden areas. There was no suggestion of her going into any of the other wards. Ms Robinson knew Ms Manuel and sometimes saw her in the halls when she was being taken out by her family. She did not know Ms Fowler or Mr Kelly. (T413ff)

212. Finally, Ms Cynthia Smith was a visitor to her mother, Ms Gerada Rykers, in the Magnolia ward. On each of the two days she was within the facility from about 9.40am until about 12.10pm. She remained in her mother's company, either in the ward or in the garden, and did not go anywhere else. She had only once ever been up to the first floor and that was in about May 2013 to visit a resident in the Parkview ward who they used to meet in the garden but who had become ill. (T162ff)

213. In seeing and hearing each of these witnesses give evidence I did not at all get a sense that they were being anything other than honest and candid. I am quite comfortable excluding them as possible perpetrators. It follows that if the "one-perpetrator" theory holds true (which I believe it does) the possibility of a visitor being responsible can be rejected beyond reasonable doubt.

Someone else as the perpetrator

220. CCTV tracking of those who were within the SummitCare facility on 18 and 19 October identified people in various other categories. There were a number of members of staff who were not directly involved in nursing or caring for residents (management, cleaners, etcetera) and visiting medical staff. There were sundry other visitors such as a barber, couriers, funeral directors, a pathologist, people delivering milk, fruit and vegetables, newspapers and the like. There were also, of course, the 35 people who could not be identified.

221. None of these people were present on both days. Some were not present, on the day they attended, within the timeframe for an injection to have occurred. Again, if the "one-perpetrator" theory holds true, the possibility of any of these sundry other people being responsible can be rejected as a possible hypothesis.

Another staff member as the perpetrator

222. In addition to the accused, there were 19 members of staff who were present at SummitCare within the timeframes for the injection of each victim. They were the following:

Mountview ward

RN Guanghua (Stephen) Zhao

AIN Juneen Avery

AIN Jordan Franks

AIN Erin Mathews

AIN Cheryl Minter

Parkview ward

TL Amanda Nantsou

AIN Ester Bisimwa

AIN Diane McMillan

AIN Joseph Meredith

Lavender ward

RN Esta Luo

AIN Alison Grimshaw

AIN Gabrielle Richardson

Magnolia ward

AIN Louise Archibald

AIN Jayden Northam

Kitchen

Dolores Escobar

Kathryn Tindall

Kylie Atkins

Robert Neale

Laundry

Dianne Andrews

223. With the exception of Ms Cheryl Minter, who has since passed away, each of these members of staff gave evidence to the effect that they were not responsible for injecting any of the victims. In Ms Minter's case, agreed extracts from her police statements were read. In addition, by happenstance Ms Rhianna Gresham, who was new to the SummitCare staff, was working with Ms Minter as a “buddy” on the afternoon shift on Friday 18 October and was able to account for her movements. That was because when they were on the ward she was required to be with Ms Minter at all times. Ms Minter had told police that she had not given anyone an injection and Ms Gresham confirmed that was the case in respect of 18 October.

224. None of these members of staff were cross-examined in a way to raise doubt about their denials. I am not suggesting that was required on behalf of the accused; the onus of excluding these people is on the Crown. But the fact is that no reason was advanced in respect of any specific member of staff as to why they should not be believed in their denial. Nor was there any suggestion that the police investigation was deficient in scrutinising the possible culpability of any particular individual.

225. The whereabouts of each of these people were accounted for in the evidence as far as that could be done. The Crown Prosecutor acknowledged, however, that he could not account for their whereabouts at all times. (T815.7)

226. The content of the evidence of each of these people, and the manner in which it was given, impressed me as being candid and honest. Obviously, however, a guilty person might still be capable of portraying an image of innocence. Nevertheless, I was not left with any feeling of unease that any of these people might be a suspect. The most critical question, however, is whether there is anything that distinguishes the accused who is in the same class of potential suspects.

A woman as the perpetrator

227. I have earlier referred to a conversation between Detective Sergeant Little and Mr Kelly at the John Hunter Hospital on 22 October 2013: see above at [84]. Mr Watson submitted that even though some of the answers given by Mr Kelly were not responsive, he was responsive to critical questions which elicited answers that the person who gave the injection was not a nurse or a doctor but was a woman.

228. In my view, no reliance can be placed on this conversation. There is the evidence of Ms Kathleen Lowe (see above at [83]) to the effect that her grandfather, when conscious, could not even recognise his loved ones when they visited. Such conversations as occurred were not at all meaningful. Detective Senior Constable Stephen who was taking a note of the conversation gave evidence that Mr Kelly was not "lucid". He said he gave this description because Mr Kelly's eyes were rolling from side to side; he was not looking at the officers; he was mumbling; he began crying; he would close his eyes and appear to be asleep and then appear to come back again. Detective Senior Constable Stephen said, "He didn't appear to understand where he was or what was happening", a description consistent with that of Ms Lowe.

229. Detective Senior Constable Stephen was invited in cross-examination by Mr Watson to express his opinion about the degree to which Mr Kelly was responsive and elicited responses such as: "I don't believe he understood what it was in relation to when we asked him the questions"; "We believed he was getting confused with the nursing staff and that had been in to see him during the day"; and "I don't believe the whole conversation can be taken literally the way it's come across".

230. In the end, of course, it is me, not Detective Senior Constable Stephen, who has to make the assessment. But in light of all of the evidence on the subject I do not believe this “conversation” gives rise to a reasonable possibility that the person who injected Mr Kelly was not a doctor or a nurse but was a woman.

Anything might be possible

231. Two aspects need to be considered under the general category of "anything might be possible": the lack of the accused having a motive and the adequacy of the police investigation.

232. As to motive, the Crown Prosecutor, correctly with respect, submitted that whilst no motive for the accused doing what he is alleged to have done has been established, it was not an essential matter for the Crown to prove. That is correct and I do not understand the contrary to have been suggested. The simple fact is that somebody did it but for reasons which are unknown.

233. The second matter, the adequacy of the police investigation, was the subject of strident criticism in the submissions of Mr Watson. The one thing that has struck me is the impression of there having been a very long-drawn out and painstakingly detailed investigation. The time and effort put into analysis of 37 hours of footage from each of 5 CCTV cameras in order to identify, or attempt to identify, the 319 people who attended SummitCare, some once and some on multiple occasions, must have been considerable. And it was not only that, it was also necessary to identify movements of staff and others to and from and within the lower ground floor area of the facility. Then it was necessary to obtain statements from all of the staff, visitors, doctors, experts and various others. I was told at the start of the trial that there was the potential for 370 witnesses to be called.

234. There were certain hurdles met by investigators. One example is the lack of any record keeping at SummitCare as to insulin stocks and usage; apparently, that is simply not done in such a facility.

235. I have earlier referred to the fact that the matter came to the attention of police on the evening of 21 October and that a search warrant was executed the following day when the facility was found to be a "contaminated scene": see above at [108]. Mr Watson, however, submitted that there should have been "a forensic assessment by the police as soon as possible at SummitCare". (T835.45) He suggested, for example, that the treatment rooms in each of the four wards could have been closed down and the rooms of each of the victims could have been secured. Other organisations such as the local pharmacy could have been called upon to provide medications and treatments for the residents while there was a thorough search for things such as fingerprints and DNA material. The sharps container in the Mountview ward could have been seized and submitted for such analysis. The police could have traced where the contents of that container had been disposed of by the waste collection contractor. Uniformed police could have been brought in to search the grounds.

236. With respect to Mr Watson, these suggestions as to what the police might have done are quite unrealistic and whether they would have yielded anything useful appears most unlikely. Although it is not at all determinative of this issue, I note that none of these matters were raised with Detective Sergeant Faber. A major topic of his evidence-in-chief was the adequacy of the investigation but he was not cross-examined at all.

237. Another point raised in the closing address on behalf of the accused was that there was a lack of thorough testing sought by the police as to the type of insulin found in the samples obtained from the victims. The point was that if there had been, it might have been possible to show that the insulin was not of a type that was on hand in the treatment rooms in the SummitCare wards. Further, it might have been possible to identify a shorter timeframe for when the injections may have occurred. Little, if anything, turns on this. The evidence is what it is. It is not a matter of there being potentially exculpatory evidence that was not available.

Circumstantial case against the accused

238. The starting point in examining the possibility that the accused was the person responsible for injecting each of the victims is to acknowledge that it is an undisputed fact that somebody did so and that I am satisfied that it was the one person. The concision with which this can be stated should not belie its significance. It demonstrates that what would otherwise seem improbable – that a person could inject a harmful substance into three residents in the Mountview ward without anyone noticing – did in fact occur.

The accused was on duty in the Mountview ward when the injections were given

239. There is no issue about the fact that the accused was working in the Mountview ward when each of the injections were given to the three victims. Thus, and acknowledging that he was not the only one, he was able to have ready access to each of them.

The accused was skilled and experienced in the injection of insulin

240. There is no doubt that the accused had the training, skill and experience in the administration of insulin. He said so himself: see above at [123]-[124]. He continued giving insulin injections to residents even after the policy change in early 2013 which prohibited team leaders from doing so. He claimed that he did so at the request of the registered nurse but the evidence of RN Zhao and RN Zubcakova was to the effect that he took it upon himself because of his perception that they were busy. (T557; 440) In cross-examination, Ms Zubcakova agreed ("probably yes") that it was done after consultation with her, but in re-examination she was not certain about this. (T444.45; 447.40)

The accused administered insulin to two insulin-dependent residents of Mountview ward on the mornings of 17 and 18 October

241. The accused gave insulin to Mr Rex Joyce on the morning of 17 October 2013 and to Mr Joyce and Mr Ronald Earsman on the morning of 18 October 2013. (T437-440; 555) Thus, he continued to demonstrate his preparedness to inject insulin into residents right up to the time of the injections given to the three victims. In part, this and the previously mentioned circumstance mean that the accused taking insulin and syringes from the treatment room on 18 or 19 October 2013 might be perceived as unremarkable.

The accused was found in possession of needles, syringes and information about insulin

242. When police searched the accused’s home on 5 December 2013 they found a quantity of syringes and needles as well as a prescribing literature concerning insulin. The latter refers to a number of types of insulin that were on hand in the treatment room of the Mountview ward on 18-19 October 2013. It includes the time each type of insulin takes to achieve its hypoglycaemic effect. Contraindications mentioned include hypoglycaemia. There is mention of overdosing causing hypoglycaemic effects. There is a description of such effects which includes that "severe hypoglycaemia may lead to unconsciousness and may result in temporary or permanent impairment of brain function or even death".

243. Mr Watson sought to deal with this issue in his closing address. (T834-5) He argued that the insulin literature was readily obtainable and was at the accused's home in connection with his studies in nursing. In relation to that, first there is no evidence of it and secondly, Mr Watson accepted that there was no other literature found that might be relevant to such studies. He also submitted that the literature only gave descriptions of different types of insulin with the only detail given being that it is to be injected subcutaneously. That is not correct. There was a lot of other information, some of which I have just mentioned.

244. As to the syringes, it was submitted that the accused's profession was "indicative of a connection with those types of items" and they "can't be anything that you would relate to the overdosing of people with any sort of drug or insulin". They are commonly acquired items that must have been accumulated over a period of time. There was no direct connection with the accused and the injecting of residents at SummitCare. In response to these points, first, there is no evidence as to why the accused would acquire and accumulate syringes and needles at his home (or the stethoscope which was also found). Secondly, it is important to bear in mind that this is but one of a number of circumstances relied upon by the Crown and the case needs to be considered as a whole, rather than piecemeal, as I have earlier pointed out.

The accused had access to insulin

245. The security of the treatment room where the insulin in the ward was kept was not perfect. But I am satisfied that most of the time the room was secured when unattended and it is of some significance that the accused had the key to it and, unlike most of the members of staff, could access it at any time without raising suspicion. It was in fact integral to his daily duties to go to the treatment room regularly; for example, to access medication charts and to obtain the oral medications he was required to give to residents at breakfast and lunchtime. His key also allowed him access to treatment rooms in the other wards, including Parkview where a greater quantity of insulin was stored.

The accused had the opportunity to give the injections

246. As I have just mentioned, the accused was required to administer medications to all of the residents and did so at around breakfast and lunch time on his morning shift. The Crown does not contend that it was necessarily at those times that the injections were given to the victims. But the fact that he was involved in this activity, and also in the unauthorised activity of giving insulin injections to insulin-dependent residents, means that he clearly had the opportunity, probably more so than anyone else.

The relationship between the accused and the victims

247. Following on from this, it may be seen that the accused was, as the Crown Prosecutor put it (T820.8) the victims' "primary medication giver". They would be less likely to object to him giving them an injection than anyone else aside from a registered nurse.

248. The Crown Prosecutor referred to the opinions of the victims' general practitioners about whether they would have been likely to protest. Dr Gay thought that Ms Fowler "would not argue or cause a fuss and was agreeable to everything. She was too far demented to really question or raise any alarm to anything being done to her such as being injected with something that she was not supposed to receive." (Exhibit C tab 10 [7])

249. Dr Gay considered Ms Manuel as less demented than Ms Fowler. She thought that she "would say something if she was injected with something not regularly given to her due to her being more aware than Gwen". (Exhibit C tab 10 [9])

250. Dr Kisonas was of the opinion that Mr Kelly "would probably say something at the time if he was injected with something that he didn't normally receive". But he added that "if it was done by someone who regularly attended Mr Kelly then it probably wouldn't cause Mr Kelly to overreact. I would describe Mr Kelly as being a reasonably placid cooperative patient." (Exhibit C tab 31 [10])

251. There is no dispute that the injections were given and there is no suggestion of any baulking, remonstration or protest on the victims' part, whoever the perpetrator was. The opinions of these two doctors, particularly in relation to Ms Fowler and Mr Kelly, tend to support the notion that the injections were given by someone with whom the victims were familiar and comfortable with, in the context of receiving medications.

No other potential perpetrator

252. I have concluded that it is not a realistic possibility that the person who committed the crimes with which the accused is charged was an unidentified person who entered without being captured on CCTV, a resident, a visitor, or someone who was not present at SummitCare on both 18 and 19 October. Nursing and care staff who were present at the relevant times remain possibilities but there is nothing to suggest anyone of them in particular might have been responsible.

The text messages

253. If they stood by themselves the text message exchanges would not be decisive in the context of the standard of proof being beyond reasonable doubt. The Crown did not contend otherwise. They must be looked at as another strand in the cable of the circumstantial case.

254. I am satisfied that they do suggest foreknowledge by the accused of the impending or prospective demise of Ms Manuel and Mr Kelly. On his own account, particularly prior to being confronted with the messages, he had no reason to think that either of them would die when he sent the messages. At 11.27am on 19 October Mr Kelly had not demonstrated any symptoms and at 1.23pm Ms Manuel had been taken to hospital with something he claimed to police he thought was not life-threatening. Yet in his private communications with Ms Wilson and Ms Collins he was suggesting they were the next residents on the ward to die. By 8.00pm, he expressed confidence in his prediction about Ms Manuel ("Its gonna be audrey").

253. The message to Ms Christensen later that night – "adrenaline kicks in" – is equivocal. On the one hand it might be considered sinister but on the other, it may well be simple big-noting to a person who was not part of the nursing profession who had a moment before said that she did not deal with death very well. The balance of that exchange could well be just disrespectful and in bad taste.

254. There is, of course, the fact that the accused nominated Ms Ethel Cliff in the alternative to Mr Kelly. On the basis that it is purely speculative I do not accept the Crown Prosecutor's argument that the nomination of both persons points to the fact that the accused intended to inject one or the other and just happened to come across Mr Kelly first. On one view, the nomination of Ms Cliff would support the contention that the accused was just guessing at who might die next. But on the other hand, it may be that he realised that confining his nominations to those persons he had given insulin to (or proposed to) might be to reveal too much. In the end, I think this aspect is equivocal.

255. Before he became aware that the police had information about the text messages, the accused had given his account that he had no reason to predict the demise of Ms Manuel or Mr Kelly. To that point, his account as to their well-being was consistent with what was described by other staff members. When he was confronted with the text messages after making his statement on 6 November 2013 he realised they were contradictory and looked suspicious. He said he could not explain them.

256. A few weeks later when he made his statement on 10 December he offered that Mr Kelly was "always … up and down health wise". In relation to Ms Manuel, contrary to what he had said before, he offered that "in light of the medical episode that I had seen Audrey take on that day it was likely that she was going to be the third to die".

257. At an early stage of his interview of 21 August 2014 he was reminded of his earlier statements. He was thereby reminded of the claims he had made prior to becoming aware police had his text messages that Ms Manuel and Mr Kelly were not facing a life-threatening health situation. In relation to the prediction relating to Ms Manuel, he introduced the suggestion that when people are sent off to hospital, “we don’t know what happens”, “you just assume you know” and “we don’t know if they’re gunna come back or not”. In relation to Mr Kelly, he repeated the claim that “Ryan Kelly’s good one day and bad the next” and added, “he was alright but you know but he declined heaps over the time”. Generally, he sought to portray the texts as just banter, for example, “just throwing names around” and he cited an example of a similar conversation with nurses at a recent charity event. He also claimed that in the handovers on Saturday 19th and Sunday 20th October, “nurses were throwing around other people’s names”. (There is no evidence of this.)

258. I accept that there might be “black humour”, as it was described, in conversations between nurses and carers who work in a stressful environment in which death is constantly present. However, the accused’s attempts to portray the text messages in this way fails when it might be more expected that if he was going to predict someone’s death he would nominate people who were the most ill amongst the residents of Mountview; not people who were, despite their respective medical conditions, comparatively stable, or in the case of Ms Manuel, thought to have taken a turn which was not anticipated to be catastrophic.

259. In my view, the references to the imminent demise of Ms Manuel and Mr Kelly support the Crown’s circumstantial case in that they are indicative of the accused knowing that they had both received injections of insulin.

Conclusion

262. I am satisfied beyond reasonable doubt that one person was responsible for injecting each of the victims and that such injections occurred up to, at most, 8 hours prior to significant hypoglycaemic symptoms being displayed.

263. Aside from the 20 SummitCare staff present in the facility within the relevant timeframes on both 18 and 19 October 2013, I am satisfied beyond reasonable doubt that all other persons are excluded as suspects.

264. In relation to the 20 SummitCare staff, their presence gave them, in varying degrees, the possibility of having access to each of the victims. Aside from this there is no evidence or suggestion of them being responsible for giving the injections except in the case of the accused.

265. In relation to the accused there are the various circumstances which I have just reviewed, many of them being unique to him. None, on their own, establish his guilt but when regard is had to their combined force I am left with no doubt.

Verdicts

266. I am satisfied beyond reasonable doubt that the Crown has proved the offences in each count in the indictment and I return the following verdicts:

1   Murder of Ms Gwendolyne Fowler: Guilty

2   Administer poison with intent to murder Ms Audrey Manuel: Guilty

3   Murder of Mr Ryan Kelly: Guilty

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Decision last updated: 30 October 2018