Sturniolo v The State of Western Australia

[2023] WASCA 147

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   STURNIOLO -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 147

CORAM:   QUINLAN CJ

BEECH JA

HALL JA

HEARD:   23 NOVEMBER 2022 & 12 SEPTEMBER 2023

DELIVERED          :   20 OCTOBER 2023

FILE NO/S:   CACR 167 of 2021

BETWEEN:   ALAINE DAWN STURNIOLO

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

FILE NO/S:   CACR 168 of 2021

BETWEEN:   ALAINE DAWN STURNIOLO

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   FIANNACA J

File Number            :   INS 30 of 2019

Catchwords:

Criminal law - Where appellant convicted of murder - Where prosecution case was circumstantial - Whether verdict of guilty was unreasonable or cannot be supported by the evidence - Whether new evidence demonstrated that appellant should not have been convicted - Whether miscarriage of justice arose from trial judge's failure to explain with more precision when, on State case, appellant was said to have done the critical act causing death - Whether trial judge's direction that the date the offence was committed was not an element of the offence was erroneous or gave rise to a miscarriage of justice

Criminal law and sentencing - Appeal against sentence - Conviction after trial of murder - Where victim was appellant's elderly grandmother - Where appellant sentenced to life imprisonment with minimum term of 20 years - Whether minimum term was manifestly excessive

Legislation:

Nil

Result:

CACR 167 of 2021
Extension of time granted
Leave to appeal on ground 1 granted
Appeal dismissed

CACR 168 of 2021
Leave to adduce additional evidence refused
Leave to appeal on grounds 1 - 3 refused
Appeal dismissed

Category:    B

Representation:

CACR 167 of 2021

Counsel:

Appellant	:	In person
Respondent	:	L M Fox SC & S Packham

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

CACR 168 of 2021

Counsel:

Appellant	:	A J C Mossop & J Solliss
Respondent	:	L M Fox SC & S Packham

Solicitors:

Appellant	:	Jennifer Solliss
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

ARK v The State of Western Australia [2014] WASCA 45

Clarke v The State of Western Australia [2018] WASCA 14

Corbett v The State of Western Australia [2016] WASCA 97

Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651

De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57

DLS v The State of Western Australia [2021] WASCA 197

Hamilton v The Queen [2021] HCA 33; (2021) 274 CLR 531

Huggins v The State of Western Australia [2018] WASCA 61

Jago v The State of Western Australia [2022] WASCA 2

JEL v The State of Western Australia [2022] WASCA 32; (2022) 58 WAR 295

Lang v The Queen [2023] HCA 29

Lawless v The Queen (1979) 142 CLR 659

Prestidge v The State of Western Australia [2014] WASCA 16

R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308

R v Hillier [2007] HCA 13; (2007) 228 CLR 618

R v Wood (No 2) (1967) 52 Cr App R 74

Ratten v The Queen (1974) 131 CLR 510

Ruthsalz v The State of Western Australia [2018] WASCA 178

Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164

The State of Western Australia v Smith [2015] WASCA 87; (2015) 250 A Crim R 468

The State of Western Australia v Stoeski [2016] WASCA 16

The State of Western Australia v Sturniolo [2021] WASCSR 47

Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365

Table of Contents

Introduction

Background

The State case

The defence case

The judge's summing up

The appeal

Grounds of appeal

Appellant's submissions

Ground 1

Ground 2

Ground 3

Ground 1:  unreasonable verdicts - legal principles

Ground 1:  analysis of the nature of the State case at trial

The need to consider the evidence as a whole

The State case was not confined to the appellant doing the critical act on 3 January 2012

Ground 1:  disposition - was the verdict unreasonable?

Summary

The evidence proved that a person placed the Webster‑pak where Mrs Baldwin would find and use it

The appellant's access to Kenneth Baldwin's and Mrs Baldwin's Webster‑paks and her knowledge of where Mrs Baldwin kept her Webster‑paks

The appellant's fingerprints on the header

The evidence of the appellant's admissions

Introduction

The evidence of Sarah Baldwin

The evidence of Brent Mynard

The evidence of Patrick Gage

Evidence of admissions:  conclusion

The evidence to which the appellant points does not assist her

Ground 1:  conclusion

Ground 2:  new evidence

The additional evidence

The appellant

David Sturniolo

Anne Baldwin

Vicki Smith

Additional evidence on appeal:  legal principles

Ground 2:  disposition

Ground 3:  disposition

Conviction appeal:  conclusion

The sentence appeal

Introduction

The facts of the offending

The appellant's personal circumstances

Sentencing remarks

Ground of appeal

Appellant's submissions

Disposition

The sentencing appeal:  conclusion

Orders

JUDGMENT OF THE COURT:

Introduction

1. The appellant appeals against her conviction of the murder of her grandmother, May Dawn Baldwin.  She also appeals against the sentence of life imprisonment, with a minimum term of 20 years, imposed by the trial judge. 

2. The State alleged that the appellant poisoned Mrs Baldwin by substituting medications that included morphine into the Webster‑pak used by Mrs Baldwin to take her daily medications.  On the State case, the appellant did this by making it appear that a Webster-pak produced for her uncle, Kenneth Baldwin, which included a painkiller containing morphine, belonged to Mrs Baldwin and placing it in a location where Mrs Baldwin would use it.  The State case relied on the jury drawing an inference to that effect.

3. The defence case at trial was that, for a number of reasons, the inferences involved in the State case were not proved beyond reasonable doubt and could not be said to be the only reasonable inferences.  Further, the appellant gave evidence denying the offence.

4. The appellant now appeals her conviction.  Her grounds of appeal contend that:  the verdict is unreasonable and unsupported by the evidence (ground 1); having regard to additional evidence on appeal, there was a miscarriage of justice (ground 2); and the trial judge's direction to the jury was deficient in several respects, including that it failed to explain a critical aspect of the prosecution case - namely, when the appellant was said to have substituted the medications - and failed to identify for the jury the evidence bearing on that issue (ground 3).

5. The appellant also appeals against her sentence of life imprisonment with a minimum term of 20 years, contending that the sentence, specifically the minimum term, was manifestly excessive. 

6. For the reasons that follow, none of the grounds of appeal against conviction has been established.

7. Ground 1 fails because in our view it was well open to the jury, acting reasonably, to be satisfied beyond reasonable doubt as to the appellant's guilt.  Our review of the trial record has not given rise to a reasonable doubt on our part.  In summary, that is because:

   (1)The evidence readily proved beyond reasonable doubt that a person had deliberately killed Mrs Baldwin by placing Kenneth Baldwin's Webster‑pak in a location where Mrs Baldwin kept her Webster‑paks.

   (2)The person who so acted must have had access both to Kenneth Baldwin's unused Webster‑paks and to Mrs Baldwin's used Webster‑pak with the header dated 29 November 2011.  That person must also have known where Mrs Baldwin kept her unused Webster‑paks.  There was ample evidence, including from the appellant, that all of those things were true of the appellant.  The evidence did not suggest that the same was true for many other people.

   (3)The appellant's fingerprints were on the header dated 29 November 2011 - a fact consistent with the appellant being the person who removed the header from Mrs Baldwin's Webster‑pak and affixed it to Kenneth Baldwin's unused Webster‑pak.

   (4)There was evidence of the appellant admitting that she had so acted to each of three different people on different occasions.  The record does not reveal any basis to conclude that, having seen and heard those witnesses, it was not open to the jury, acting reasonably, to accept their evidence.

   (5)The evidence at trial to which the appellant points, concerning where she was in the first week of January 2012, does not sustain a different conclusion.

8. The additional evidence adduced by the appellant is new rather than fresh - it was available to be led at trial by the appellant.  Ordinarily, as here, new evidence demonstrates a miscarriage of justice only if it satisfies the appellate court that the appellant is innocent or should not have been convicted.  The appellant has not met that high hurdle.  For that reason, ground 2 fails.

9. Ground 3 also fails.  The appellant has not shown that any aspect of, or alleged omission in, the trial judge's summing up was erroneous or gave rise to a miscarriage of justice.

10. The sentence appeal fails because no ground has been demonstrated for interfering with the trial judge's discretionary decision as to the minimum term to be served by the appellant before she is eligible to apply for parole.

Background

1. Mrs Baldwin died on 16 January 2012. 

2. The State alleged that between 1 January 2012 and 16 January 2012, the appellant murdered Mrs Baldwin.

3. As already noted, Mrs Baldwin was the appellant's grandmother.  Mrs Baldwin had two children, Anne Baldwin and Kenneth Baldwin.  Anne Baldwin is the appellant's mother and has another daughter, Sarah Baldwin.  At the relevant time, Sarah was in a relationship with Brent Mynard.

4. Kenneth Baldwin died of cancer on 29 June 2011.  At the time he died, he was regularly taking a number of medications, including MS Contin tablets, which contain morphine sulphate. 

5. It is necessary to begin by outlining the parties' respective cases at the trial.

The State case

1. In a nutshell, the State case was as follows.  The appellant substituted some of Kenneth Baldwin's medications into the Webster‑pak used by Mrs Baldwin.  The appellant did this by removing the header from one of Mrs Baldwin's used Webster‑paks - dated 29 November 2011 - and placing it in a Webster‑pak that had belonged to Kenneth Baldwin, containing his medications, including MS Contin tablets.  The appellant placed the modified Webster‑pak in the place where she knew that Mrs Baldwin usually kept her Webster‑pak.  Mrs Baldwin ingested the MS Contin from the Webster‑pak placed there by the appellant, believing it to be her medication.  Mrs Baldwin became unwell as a result of morphine toxicity and subsequently died from complications that were initiated by the morphine toxicity. 

2. In more detail, the State case, and the evidence it led, was to the following effect. 

3. Mrs Baldwin used a weekly Webster‑pak.[1]  Each fortnight, two Webster‑paks would be collected on Wednesday or Thursday morning from the pharmacy.[2]  The last time that Webster‑paks for Mrs Baldwin were collected was 21 December 2011.  Her Webster‑paks prepared for the two weeks starting Thursday, 5 January 2012 and due to be collected that day or the day prior, were not collected from the pharmacy.[3]  On the State case, that is because, by 5 January 2012, the appellant had placed one of Kenneth Baldwin's Webster‑paks where Mrs Baldwin would usually keep her Webster‑paks, knowing that Mrs Baldwin would then consume the contents of Kenneth Baldwin's Webster‑pak.[4]

   [1] ts 91 (opening), 632, 636 (Tania Paunich), 1358, 1373 - 1375 (closing).

   [2] ts 91 (opening), 616, 625 (Tania Paunich), 673 (Lai Cryer), 1371, 1373 (closing). 

   [3] ts 91 (opening), 632 (Tania Paunich), 674 (Lai Cryer), 1374 (closing).

   [4] ts 91 - 93 (opening), 1364 - 1365, 1374 (closing).

4. On Monday, 9 January 2012, Mrs Baldwin collapsed at her home and was taken to hospital.[5]  That day, a Webster‑pak was found at her home.  It was collected from her home by an assistant at Mrs Baldwin's pharmacy, Ms Paunich, who examined it with her pharmacist, Ms Cryer.[6]  When Ms Cryer opened it, the header of the Webster‑pak, which is ordinarily securely attached to the Webster‑pak foil and the medications by being ironed on to the foil,[7] fell out of the Webster‑pak.[8]  The header was in Mrs Baldwin's name and dated 29 November 2011.[9]  It listed Mrs Baldwin's medications.[10] 

   [5] ts 90 (opening), 502 (Alisha Bailey), 1368 - 1369 (closing). 

   [6] ts 91 (opening), 646 - 647, 653 - 654 (Tania Paunich), 676 - 677 (Lai Cryer), 1359, 1364, 1369 - 1370 (closing). 

   [7] ts 622 - 624.

   [8] ts 91 (opening), 654 (Tania Paunich), 676 (Lai Cryer), 1370, 1376 (closing).

   [9] ts 91 (opening), 648 (Tania Paunich), 1376, 1378 (closing). 

   [10] ts 91 - 92 (opening), 639 - 642 (Tania Paunich), 1376, 1378 (closing). 

5. However, the medications contained in the Webster‑pak, when analysed, did not match the header.  Rather, with one exception, the medications mirrored those that were taken by Kenneth Baldwin.[11]  That included two MS Contin tablets to be taken each day, one at breakfast and one at dinner.  The exception was the addition of Panadol Osteo,[12] which appeared to have been added in the location marked 'lunch' through a tear in the foil in the back of the Webster‑pak.[13]  That addition reflected Mrs Baldwin's regular taking of Panadol Osteo at lunchtime.[14]  On the State case, the Panadol Osteo was added so that the Webster‑pak better resembled Mrs Baldwin's regular Webster‑paks.[15]

   [11] ts 92, 99 - 100 (opening), 599 (Jessica Wang), 696 - 697 (Debra Perry), 771 - 778 (Lecinda Collins‑Brown), 880 - 884 (David Joyce), 1359, 1376 - 1378 (closing). 

   [12] ts 697 (Debra Perry), 772 - 773 (Lecinda Collins-Brown). 

   [13] ts 667 - 668 (Tania Paunich), 1359, 1378 (closing).

   [14] ts 596 (Jessica Wang), 640, 642 - 643 (Tania Paunich), 1378 (closing). 

   [15] ts 1359, 1378, 1410 (closing). 

6. The Webster‑pak found on 9 January 2012 was empty from Thursday onwards, suggesting that it had been put in Mrs Baldwin's possession on or before Thursday, 5 January 2012 and used by her from that Thursday.  That in turn meant that she had consumed eight tablets containing morphine.[16]

   [16] ts 99 - 100 (opening), ts 876 (David Joyce), 1359, 1365 - 1366, 1368, 1379, 1401 - 1402 (closing).

7. These facts supported an inference that someone had placed Kenneth Baldwin's Webster‑pak in a location where Mrs Baldwin would have expected to find her Webster‑paks.[17]

   [17] ts 92 - 93 (opening), 1358 - 1359 (closing). 

8. The State case that the appellant was the person who substituted the Webster‑paks was largely circumstantial.  In support of the inference that the appellant was the person who did this, the State relied on a number of facts and circumstances that it said were established by the evidence, including:

   (1)Admissions:  evidence of admissions by the appellant to each of Sarah Baldwin, Brent Mynard and Patrick Gage, pointing to the following evidence:

   (a)Sarah Baldwin's evidence that at around the time Mrs Baldwin was admitted to hospital on 9 January 2012, the appellant said to Sarah that the appellant had switched Mrs Baldwin's pills and that Mrs Baldwin had gone to hospital, in response to which Sarah said to the appellant, 'You'd better switch those back and pray she's all right'.[18]  The appellant replied that she could not switch the packs back because the packs were at the hospital.[19]  Sarah Baldwin also gave evidence of an occasion in 2014, at Anne Baldwin's birthday party, on which the appellant said words to the effect of, 'It was easy enough to knock Dawn off, … why don't you do the same thing'.[20]

   (b)Brent Mynard's evidence including that, (i) in the course of a conversation in which he and the appellant were sharing secrets, the appellant said to him that when she cleaned Kenneth Baldwin's house out, she found Kenneth Baldwin's stash of medications and subsequently gave it to Mrs Baldwin,[21] and (ii) on one occasion the family played a game the object of which was to help Anne Baldwin better understand the idea of sarcasm. In the game, a person would make a statement and, if it was made sarcastically, would hold up a card. During the game, the appellant said words to the effect of 'I've killed someone and got away with it'. She did not hold up the 'sarcastic' card.[22] 

   (c)The evidence of Patrick Gage, who was a work colleague and friend of the appellant, that she told him that her grandmother was not a nice person and that she had swapped her medication and then her grandmother had died because of it.[23]

   (2)Motive:  in a Facebook post dated 5 May 2011, in response to the question, 'What is the one thing you wish you could change about your life', the appellant posted, 'Debt, and my grandmother[']s life status'.[24]  In a Facebook post on 21 June 2011, the appellant responded to a question as to what she hated, beginning with the letter 'G', with 'Grandma'.[25]  Further, in the course of her records of interview, the appellant told police that she hated her grandmother and hated the way that her grandmother had treated the appellant's mother.[26]  The State pointed to evidence from Sarah Baldwin, and her then-partner, Brent Mynard, of the appellant saying to each of them words to the effect that she did not like her grandmother, and that life would be much better without her grandmother.[27]  Brent Mynard also gave evidence that the appellant said that it would not take much for Mrs Baldwin to 'drop off the perch'.[28]

   (3)Opportunity:  the State adduced evidence that the appellant was seen at Mrs Baldwin's home in the period prior to her death, including on 3 January 2012.[29]

   (4)The appellant's fingerprints:  a print of the appellant's right index finger was found on either side of the header dated 29 November 2011 attached to the Webster‑pak containing Kenneth Baldwin's medication.[30]  The presence of the appellant's fingerprints was said by the State to be explained by the appellant removing Mrs Baldwin's header dated 29 November 2011 from her old Webster‑pak and placing it into the Webster‑pak containing Kenneth Baldwin's medication.[31]

   (5)Access to Kenneth Baldwin's medication:  during her police interview, the appellant told police that she, together with others, packed Kenneth Baldwin's things after he had died and that she picked up three Webster‑paks.[32]

   (6)The appellant knew where Mrs Baldwin kept her Webster‑paks: during her interview, the appellant told police that Mrs Baldwin kept her current Webster‑pak next to her armchair,[33] and the following week's Webster‑pak on her bedside table.[34]  She gave evidence to the same effect at trial.[35]  Anne Baldwin also gave evidence to the same effect.[36]

   (7)Exclusion of deliberate ingestion:  to exclude any inference that Mrs Baldwin had deliberately taken some or all of Kenneth Baldwin's medication, the State pointed to evidence that Mrs Baldwin had expressed concern to her pharmacist and to her friends, Dr and Mrs Ricciardo, that her medication had been changed.[37] 

   [18] ts 94 (opening), 123 - 124 (Sarah Baldwin), 1351, 1384 - 1385, 1411 (closing).

   [19] ts 124.

   [20] ts 95 (opening), 129 (Sarah Baldwin), 1386 - 1387 (closing). 

   [21] ts 95 (opening), 199 (Brent Mynard), 1389 - 1390, 1411 (closing).

   [22] ts 195 - 196 (Brent Mynard), 1387 - 1389 (closing).

   [23] ts 95 (opening), 251 (Patrick Gage), 1352, 1391 - 1393, 1411 (closing).

   [24] ts 93 (opening), 1066 (Nadia Poulson), 1346 - 1347, 1379 - 1380 (closing).

   [25] ts 93 (opening), 1070 (Nadia Poulson), 1347, 1380 (closing). 

   [26] ts 93 (opening), 1347 - 1349, 1355 - 1356, 1379, 1405 - 1406 (closing).  Video Record of Interview dated 15 October 2018 ts 58 - 60; Video Record of Interview dated 9 November 2018 ts 182 - 183.

   [27] ts 126 - 127 (Sarah Baldwin), 191 (Brent Mynard), 1351 - 1352, 1380 - 1382, 1389 (closing).

   [28] ts 94 (opening), 191 - 193 (Brent Mynard), 1351 - 1352, 1383, 1411 (closing).

   [29] ts 93 (opening), 370, 374, 378 (Helen Ruscoe), 1363 - 1364 (closing).

   [30] ts 98 - 99 (opening), 942 (Julian Albers), 1394 - 1395 (closing). 

   [31] ts 99 (opening), 1394 (closing).

   [32] ts 102 (opening), 1350, 1378, 1404, 1409 (closing).  Video Record of Interview dated 9 November 2018 ts 114, 123 - 124.  See also ts 202, 228 (Brent Mynard), 1241 - 1243 (Alaine Sturniolo).

   [33] ts 102 (opening), 1364, 1375, 1403 - 1405 (closing).  Video Record of Interview dated 15 October 2018 ts 46, 52, 74.  Video Record of Interview dated 9 November 2018 ts 155 - 156, 158.  

   [34] Video record of interview dated 9 November 2018 ts 162 ‑ 164, 193, 196.  ts 1405 (closing).

   [35] ts 1137 - 1138, 1200 (Alaine Sturniolo).

   [36] ts 314 - 315 (Anne Baldwin).

   [37] ts 449 - 450 (Catherine Ricciardo), 468 - 470 (John Ricciardo), 609 (Leith Engdahl), 1357 - 1358, 1366 ‑ 1367, 1372 (closing).

1. The State led evidence that morphine was detected in Mrs Baldwin's blood.[38]  The State relied on evidence from Dr Daniel Moss, a forensic pathologist, and Professor David Joyce, a toxicologist, to the effect that Mrs Baldwin's ingestion of morphine initiated the deterioration and complications leading to her death to support its case that the appellant's act of substituting the Webster‑pak was a substantial cause of Mrs Baldwin's death.[39]

   [38] ts 101 - 102 (opening), 1369 (closing). 

   [39] ts 101 - 102 (opening), 806 - 807, 821, 831 - 832 (Daniel Moss), 896, 914 (David Joyce), 1350, 1370, 1395, 1400 (closing).

2. Dr Moss gave evidence that the blood sample taken from Mrs Baldwin at the hospital on 9 January 2012 at 12.01 pm showed a total morphine level of approximately 1 mg per litre.[40]  While Mrs Baldwin's death was not the result of a 'single event or a single thing',[41] morphine toxicity was 'the best explanation for what began the chain [of] events that led to her death'.[42]  

   [40] ts 806 - 807 (Daniel Moss).

   [41] ts 814 - 815 (see also ts 807 - 808) (Daniel Moss).

   [42] ts 101 (opening), 807, 815 - 816 (Daniel Moss), 1350, 1396 (closing).  See also ts 831 - 832 (Daniel Moss), 1397 (closing).

3. Professor Joyce gave evidence that morphine toxicity had 'a role in initiating the events that brought Mrs Baldwin to hospital' (namely, her fall on 9 January 2012), and that she would not have died if not for the presence of the morphine.[43]  He considered that the reason her death 'happened when it did was because of the morphine'.[44]  Professor Joyce also gave evidence that the level of morphine in Mrs Baldwin's blood was consistent with having taken two 45 mg ‑ 60 mg MS Contin tablets for between two and four days.[45]

   [43] ts 101 - 102 (opening), 858 - 859, 887, 895 (David Joyce), 1400 (closing).

   [44] ts 914 (David Joyce).

   [45] ts 876 (David Joyce), 1401 (closing).

1. The State contended that in substituting the Webster‑pak in the manner outlined in [22] above, the appellant intended to kill Mrs Baldwin or to cause her injury of such a nature as to endanger, or be likely to endanger, her life.[46]  In inviting an inference to this effect, the State relied on the nature of the conduct itself, together with the evidence as to motive and admissions to which we have already referred.[47] 

   [46] ts 1350 - 1353 (closing). 

   [47] ts 103 - 104 (opening), 1350 - 1352, 1357, 1409 - 1413 (closing). 

The defence case

1. The defence case had several strands.

2. The appellant gave and adduced evidence in her defence.  Her evidence was that she did not act in the manner alleged by the prosecution. 

3. The appellant gave evidence at trial that her relationship with Mrs Baldwin in 2011, both preceding and succeeding Kenneth Baldwin's death, was 'pretty good'.[48]

   [48] ts 1222, 1230 - 1231.

4. The appellant said that she had entered Mrs Baldwin's bedroom twice as an adult; once when moving Kenneth Baldwin's furniture in July 2011, and once in early December 2011 when Anne Baldwin asked the appellant to retrieve a Webster‑pak from Mrs Baldwin's beside table.[49] On both occasions, the Webster‑pak was on Mrs Baldwin's bedside table,[50] and on the second occasion the appellant handed Mrs Baldwin the Webster‑pak,[51] placing the old Webster‑pak in the bin.[52]

   [49] ts 1127 - 1128, 1137 - 1138, 1140 - 1141, 1201 - 1206.

   [50] ts 1140 - 1141, 1200, 1205 - 1206.

   [51] ts 1141, 1207 - 1210.

   [52] ts 1211 - 1213.

5. The appellant said that she found liquid morphine and several Webster‑paks among Kenneth Baldwin's possessions following his death but was under the impression that Anne Baldwin had since disposed of them.[53]

   [53] ts 1135 - 1136.

6. The appellant denied saying that she had switched Mrs Baldwin's medication in a conversation in the kitchen with Sarah Baldwin at Anne Baldwin's 60^th birthday party,[54] or during the 'sarcasm game'.[55]  Moreover, the appellant denied participating in the sarcasm game.[56]  The appellant stated that her relationship with both Sarah Baldwin and Brent Mynard had broken down.[57] She denied the admissions said to have been made to Sarah Baldwin, Brent Mynard and Patrick Gage,[58] and denied switching Kenneth Baldwin's medication Mrs Baldwin's medication.[59]

   [54] ts 1152 - 1153.

   [55] ts 1153.

   [56] ts 1153.

   [57] ts 1150 - 1151, 1155 - 1156, 1161.

   [58] ts 1153, 1158 - 1159.

   [59] ts 1166.

7. The appellant said that the first time she saw Mrs Baldwin after early December 2011 was on 7 January 2012, which was also the last time she ever visited Mrs Baldwin.[60]  The appellant said that she (the appellant) was in Collie for some days around Anne Baldwin's birthday on 30 December 2011, and did not return to Perth until at least 4 January 2012 for an ophthalmologist appointment for Anne Baldwin on 5 or 6 January 2012.[61]  She thought she was in Collie for 'nearly a week'.[62]  The appellant said it was '[d]oubtful' that she came back to Perth on Tuesday, 3 January 2012, saying she thought it was Thursday, 5 January 2012 because that coincided with her mother's pension day.[63]  We will say more about the appellant's evidence concerning where she was during the first week of January 2012 later in these reasons.

   [60] ts 1168, 1183 - 1188, 1193 - 1194.

   [61] ts 1185 - 1188.

   [62] ts 1185.

   [63] ts 1188.

8. The purpose of the appellant's visit to Mrs Baldwin on 7 January 2012 was to tell her that the appellant, her children and her mother were all moving to Collie.[64]

   [64] ts 1182, 1190.

9. Counsel submitted that if the jury believed the appellant's evidence or if they thought it might be true, then the verdict must be not guilty. 

10. The appellant's husband, David Sturniolo, gave evidence as to two events surrounding Anne Baldwin's 60^th birthday party in Collie.  First, Mr Sturniolo recalled playing the 'sarcasm game', a game in which participants held up a sign marked 'sarcasm' each time they made a sarcastic comment.[65]  Mr Sturniolo could not recall the appellant suggesting, during that game, that she had gotten away with murder.[66]  In cross-examination, he was asked if he remembered the appellant saying she had killed someone, to which he responded 'no, I never heard her say that at all'.[67]  He initially gave evidence that he did not recall her being involved in the game at all, although he later appeared to say otherwise.[68]  Second, Mr Sturniolo recalled being in the kitchen, but could not recall the appellant saying that she had switched Mrs Baldwin's medication.[69]  In cross‑examination, he said that he was 'going in and out' of the kitchen, and would not have heard anything that was said.[70]  He gave evidence that he had never heard any conversation in which the appellant said she switched Mrs Baldwin's medication - nor had he heard any similar comment since Mrs Baldwin's death.[71]

    [65] ts 1302.

    [66] ts 1303.

    [67] ts 1320.

    [68] ts 1303, 1319.

    [69] ts 1303.

    [70] ts 1320.

    [71] ts 1302 - 1303

11. Mr Sturniolo also gave evidence as to the relationship between the appellant, Anne Baldwin and Mrs Baldwin.  He said, based on what the appellant had told him, that the appellant, Anne Baldwin and Mrs Baldwin were attempting to mend their relationship 'towards the end, before [Mrs Baldwin] passed away'.[72]

    [72] ts 1308.

12. The defence contended that the evidence adduced by the prosecution failed to exclude a number of reasonable inferences that were consistent with the appellant's innocence.  Among other things, the defence contended that:

    (1)The morphine may not have played a substantial role in Mrs Baldwin's death because her death may have resulted from one or more of her heart condition or lung condition.[73]  In this respect, counsel emphasised some evidence of Dr Moss in cross‑examination.[74]

    (2)Mrs Baldwin may have deliberately used some of Kenneth Baldwin's medication without any person substituting her Webster‑pak.  Counsel submitted that Mrs Baldwin may have 'mixed and matched' her medications and medications from Kenneth Baldwin's Webster‑pak, supported by the evidence that some, but not all, of the medication in Kenneth Baldwin's Webster‑pak were found in Mrs Baldwin's blood.[75]

    (3)Someone other than the appellant may have effected the placement of the Webster‑pak, if the jury is satisfied that placement occurred.[76]  Four other unidentified sets of fingerprints were found on the relevant Webster‑pak.[77]  Counsel made detailed submissions to the effect that Anne Baldwin had no less motive and opportunity to have effected the placement of the Webster‑pak than the appellant.[78]  Anne Baldwin's fingerprints had not been obtained, so she could not safely be ruled out.[79]

    [73] ts 1415 - 1416 (closing). 

    [74] ts 820 - 821 (Daniel Moss), 1415 - 1416 (closing).

    [75] ts 1425 - 1427 (closing). 

    [76] ts 1421 - 1425 (closing).

    [77] ts 1424 - 1425 (closing).

    [78] ts 1421 - 1422 (closing).

    [79] ts 1424 - 1425 (closing).

13. Further, the defence submitted that there were a number of unsatisfactory elements to the prosecution case, including the following:

    (1)There was no admissible or reliable evidence that the appellant had been at Mrs Baldwin's home on 3 January 2012, the time when the State asserted that she had effected the placement of the Webster‑pak.[80]  To the contrary, Ms Dellit, a carer, gave evidence that Mrs Baldwin complained to her that her daughter and granddaughter had visited, unannounced, on 7 January 2012, and that Mrs Baldwin said that she had not otherwise seen them in 'ages'.[81]  Given the acrimonious relationship between those parties, it was unlikely that Anne Baldwin would have visited Mrs Baldwin twice in four days.[82]

    [80] ts 1427 (closing).

    [81] ts 410 (Bernadine Dellit).

    [82] ts 1427 - 1428 (closing). 

    (2)In any event, it would have made no sense for the appellant to have placed the Webster‑pak on 3 January 2012 in circumstances where, as the appellant knew, Mrs Baldwin regularly had carers attend at her home who could be expected to retrieve Mrs Baldwin's medication from the pharmacy the next day.[83]

    (3)Further, the State case asserted that Mrs Baldwin took Kenneth Baldwin's medication for four days, from 5 - 8 January, and yet there was no evidence of any reaction by Mrs Baldwin until 8 January, when she contacted the pharmacy, sounding drowsy.[84]  The defence pointed to Professor Joyce's evidence that a person who consumed this strong painkilling medication would feel an effect almost immediately, and in any event within 12 hours.[85]

    (4)The Facebook posts were evidently intended to be humorous.[86]

    (5)The witnesses who said that the appellant admitted having swapped the medications were not credible given (i) they all had a motive to lie, (ii) the circumstances in which they said the confessions were made, and (iii) the bizarre nature of the confessions they were said to have heard.[87]  In more detail:

    (a)Sarah Baldwin presented as a callous person of bad character who had a motive to lie and who should not be believed.[88]  The fact that she did not tell the police or the Coroner in 2012 of what she said occurred when Mrs Baldwin went into hospital around 9 January 2012 demonstrates that her evidence as to that conversation was fabricated.[89]  Moreover, her evidence as to things alleged to have been said by the appellant in the presence of Brent Mynard and Anne Baldwin was not in any way corroborated by any evidence from either of them.[90]

    (b)Brent Mynard's evidence of a confession by the appellant, said to have occurred in the course of a game at a party, defied common sense and was not supported by evidence from anyone who was said to have been present at the time.[91]  Moreover, Mr Mynard had a grudge against the appellant that gave him a motive to lie.[92]

    (c)Patrick Gage's evidence of the confession said to have been made by the appellant also made no sense.  It is contrary to common sense and experience that, after a sexual encounter that ended in a tense situation, the appellant would, out of the blue, confess to having murdered her grandmother.[93]  Moreover, on Patrick Gage's evidence, Brent Mynard raised with him that the appellant had said to Mr Mynard some things concerning the death of her grandmother.[94]

    (6)The prosecution motive fell away in circumstances in which the appellant and Anne Baldwin were 'escaping' to Collie.[95]

    [83] ts 1428 (closing). 

    [84] ts 1428 - 1429 (closing). 

    [85] ts 1429 (closing).

    [86] ts 1430 (closing).

    [87] ts 1437 (closing). 

    [88] ts 1431 - 1433 (closing). 

    [89] ts 1432 (closing). 

    [90] ts 1433 (closing). 

    [91] ts 1434 (closing). 

    [92] ts 1435 (closing). 

    [93] ts 1436 - 1437 (closing). 

    [94] ts 1437 (closing). 

    [95] ts 1420. 

The judge's summing up

1. It is unnecessary to outline all aspects of the trial judge's detailed and comprehensive summing up to the jury, which occupies more than 100 pages of transcript.

2. The trial judge gave detailed directions to the jury concerning hearsay evidence.[96]  In the course of those directions, his Honour identified some exceptions to the general rule against permitting evidence of a statement made by a person out of court to be used as evidence of the truth of the statement.  One such exception concerned the evidence of Ms Ruscoe, a carer, as to what Mrs Baldwin had told her on 6 January 2012.  The judge told the jury that, the evidence not having been objected to, the jury could take it into account in deciding whether the appellant attended Mrs Baldwin's house earlier in that week, but that, in doing so, the jury would need to carefully consider the reliability of that statement having regard to the whole of the evidence.[97]  In particular, the judge said that the jury would need to weigh that evidence against the evidence that the appellant and Anne Baldwin visited Mrs Baldwin on Saturday, 7 January 2012, at which time Mrs Baldwin said to Ms Dellit that she had not seen Anne Baldwin and the appellant in ages.[98] 

   [96] ts 1471 - 1480.

   [97] ts 1475.

   [98] ts 1475 - 1476.

3. His Honour initially directed the jury that the evidence of Ms Dellit as to what Mrs Baldwin had said was not led to prove the truth of what Mrs Baldwin had said.[99]  However, accepting submissions made by senior counsel for the appellant at trial, the judge subsequently directed the jury that they could take Ms Dellit's evidence into account as evidence of the truth of the things that she said, the weight to be given to it being a matter for the jury in light of all the evidence.[100]

   [99] ts 1476.

   [100] ts 1507.

4. The trial judge gave detailed directions concerning the question, raised in cross‑examination of several prosecution witnesses, of whether those witnesses had a motive to lie.  His Honour outlined the relevant evidence in detail, while emphasising that the appellant had no obligation to establish that a witness had a motive to lie.[101]

   [101] ts 1485 - 1489.

5. His Honour outlined the fundamental principles as to onus and standard of proof.[102]  The judge gave a conventional Liberato direction, in terms that are not criticised on appeal.[103]  The direction was given with reference to what the appellant said about the critical issues in the trial.  The judge pointed to the appellant's denial of removing the header from Kenneth Baldwin's Webster‑pak, replacing it with a header from Mrs Baldwin's Webster‑pak dated 29 November 2011, and of leaving the Webster‑pak in circumstances in which Mrs Baldwin would think it was her current Webster‑pak.[104]  The judge said, of that evidence and also of what the appellant said in her police interview, that if the jury accepted what the appellant said or if it left them with a reasonable doubt, they must acquit.[105]

   [102] ts 1507 - 1508.

   [103] ts 1511 - 1512.

   [104] ts 1511.

   [105] ts 1511 - 1512.

6. The judge also told the jury that if they rejected what the appellant said, it did not follow that they would convict the appellant.  Rather, the question would be whether the evidence as a whole satisfied them of guilt beyond reasonable doubt.[106]

   [106] ts 1512.

7. The judge then turned to the indictment, to explain to the jury the matters that the State must prove before the appellant could be found guilty.  His Honour began by explaining that the date and location of the offence are not elements of the offence and do not have to be proved beyond reasonable doubt.[107]  His Honour then said as follows:[108]

   The State alleges the events with which we are concerned occurred on the date and at the place specified in the charge being between 1 January 2012 and 16 January 2012 at Wembley Downs.  So, in essence, the State is relying on a range - on a period rather than a specific date on the basis that the events that led to Mrs Baldwin's death commenced with the actions of the accused in switching the medication, putting the header from Mrs Baldwin's Webster-pak on the Webster-pak for Kenneth Baldwin, and that it then continued because it was necessarily an offence that had to occur over a period of time in the sense that it required Mrs Baldwin to take the medication, it then required the medication to have the effect that the State alleges that it did have in terms of morphine toxicity which has then resulted in her death as a result of the deterioration of her health, and her death occurs on 16 January 2012 but the allegation is that the offence has been committed over that period.  That's the end date of the period because that is when Mrs Baldwin died but it's committed over that period because it starts with the accused's actions which occurred earlier in January.

   So that is the basis for those dates but you don't need to be satisfied specifically about when it was, what particular date it was, that the accused did the actions except to the extent that it might affect your determination of whether she did do the things alleged by the State.  Similarly, it refers to Wembley Downs, although, ultimately, Mrs Baldwin died at Sir Charles Gairdner Hospital.  So it includes, obviously, the place where she died.  But, again, it's not the place of the offence, it's not critical.  The allegation is clear enough.  These particulars, the date and the place, are there to identify for the accused where the offence and how the offence is alleged to have occurred.  (emphasis added)

   [107] ts 1513.

   [108] ts 1513.

8. It is otherwise unnecessary to detail his Honour's exposition of the elements of the offence, as no criticism is made on appeal of that part of the summing up.

9. The trial judge gave a conventional direction about the drawing of inferences, explaining that two steps were involved:  first, making findings of primary fact; and secondly, drawing an inference from those facts if, and only if, it was the only reasonable inference from those facts.[109]  His Honour also explained that, in determining whether an inference could be drawn, it was necessary to have regard to all of the evidence as a whole, emphasising that the evidence was not to be looked at in a piecemeal fashion.[110]

   [109] ts 1520 - 1524.

   [110] ts 1524 - 1525.

10. The trial judge identified two matters, of each of which the jury had to be satisfied beyond reasonable doubt before they could reach a verdict of guilty.  First, the jury had to be satisfied beyond reasonable doubt that morphine toxicity contributed to Mrs Baldwin's death.[111]  Secondly, the jury had to be satisfied beyond reasonable doubt that the morphine toxicity arose from Mrs Baldwin taking the MS Contin tablets in the Webster‑pak, the contents of which Mrs Baldwin had consumed as a result of steps taken by the appellant to cause that to happen.[112]

    [111] ts 1525 - 1526.

    [112] ts 1526 - 1527.

11. In the course of summarising the State's case, the judge told the jury that the State submitted that the appellant had the opportunity to place Kenneth Baldwin's Webster‑pak, with Mrs Baldwin's header dated 29 November 2011 on it, in a location where Mrs Baldwin would consume the medication it contained.  The State submitted that this must have happened prior to 5 January 2012 because the Webster‑pak containing Kenneth Baldwin's medication was empty from the Thursday onwards.[113]

    [113] ts 1532.

1. The judge pointed to a submission by the prosecutor that Ms Ruscoe's evidence suggested that the appellant and her mother may have been at the house on Tuesday, 3 January 2012.[114]

   [114] ts 1537.

2. His Honour gave a detailed outline of the defence case.[115]  In the course of summarising salient parts of the appellant's evidence, the judge told the jury that the appellant denied that it could have been 3 January 2012 that she went to Mrs Baldwin's house.[116]

   [115] ts 1557 - 1572.

   [116] ts 1571.

The appeal

1. Initially, and for a considerable period of time, the appellant represented herself in the appeal.  The appeal came on for hearing on 23 November 2022.  At that stage, the appellant's grounds of appeal ranged over a number of matters.  At the hearing on 23 November 2022, evidence was provisionally received from a number of witnesses, both by way of affidavit and oral evidence.

2. At the hearing on 23 November 2022, the appellant sought leave to rely upon her affidavit sworn 4 November 2022.  The respondent submitted, and the court accepted, that the respondent should have an opportunity to adduce evidence in response to the matters raised in the appellant's affidavit.  Consequently, the appeal was adjourned part‑heard.

3. Subsequently, after the appeal had been relisted to be heard on 12 September 2023, the appellant was granted legal aid and the conduct of her appeal was taken over by counsel on her behalf.  The appellant's counsel filed a substituted appellant's case which superseded the original appellant's case.  Consequently, it is not necessary to deal with the various complaints asserted in the appellant's original grounds of appeal and original appellant's case.

Grounds of appeal

1. The appellant advances three grounds of appeal in the following terms:

   (1)The verdict of the jury was unreasonable or was otherwise unsupported by the evidence.

   (2)A miscarriage of justice was occasioned because, having regard to new evidence, the appellant should not have been convicted.

   (3)There was an error of law, alternatively a miscarriage of justice was occasioned, by the manner in which the trial judge directed the jury.

Appellant's submissions

1. The appellant points to the prosecutor's closing submission at trial that it was on 3 January 2012 that the appellant had the opportunity, means and access to place her uncle's Webster‑pak in a place where she knew her grandmother would locate it and use it when her other Webster‑pak ran out on 4 January 2012.  The appellant submits that, on the State case, the placement of the Webster‑pak must have occurred on 3 January 2012.  On the State case, it could not have occurred after 3 January 2012 as, if it occurred after that date, it would not explain why Mrs Baldwin's replacement Webster‑paks were not collected from the pharmacy on 4 January 2012. 

2. This view of the State case is an integer of the appellant's written submissions in support of all three grounds.

3. At the least, the appellant submits, it was essential to the State case to prove that the substitution of the Webster-pak occurred on 1, 2, 3 or 4 January 2012.  The respondent does not challenge this characterisation of the State case.[117]  The appellant submits that each of her grounds can succeed on this broader characterisation of the State case.[118] 

Ground 1

[117] Appeal ts 154.

[118] Appeal ts 100.

1. The appellant submits that evidence of opportunity was an integral aspect of proving that she had killed Mrs Baldwin.  Consequently, she submits, it was incumbent on the State to lead some evidence to establish that she had an opportunity to do the acts by which she was said to have killed Mrs Baldwin.[119]  There was, the appellant submits, no evidence of opportunity on 1, 2 or 4 January 2012 and there was insufficient evidence to establish that, on 3 January 2012, the appellant had the opportunity, means and access to switch the Webster‑paks.[120]

   [119] Appeal ts 105 - 106, 108 - 109.

   [120] Appellant's submissions [17] - [18], [27] - [28]; appeal ts 100, 111.

2. The appellant contrasts Ms Ruscoe's evidence that Mrs Baldwin had told her on 6 January 2012 that her daughter and granddaughter had visited on 3 January 2012 with the evidence of Ms Dellit that on 7 January 2012, Mrs Baldwin had told Ms Dellit that she had not seen the appellant and the appellant's mother for ages.[121]  The appellant also points to evidence from the appellant's mother, what the appellant said in her record of interview and the appellant's evidence at trial, all of which the appellant says is to the effect that the appellant was not present at Mrs Baldwin's house on 3 January 2012.[122]

   [121] Appellant's submissions [20] - [21]; appeal ts 116 - 117.

   [122] Appellant's submissions [24] - [26]; appeal ts 118.

3. The appellant submits that, even putting aside the appellant's evidence at trial, based on the evidence as a whole, it was not open to the jury to be satisfied that the appellant had switched the medication on 3 January 2012.  Nor was it open to the jury to be satisfied that the appellant had the opportunity to do so on any of 1, 2, 3 or 4 January 2012.  Consequently, an assessment of the totality of the evidence should leave this court with a reasonable doubt as to guilt, which cannot be assuaged by having regard to any advantage the jury can be taken to have had.[123]

Ground 2

[123] Appellant's submissions [27] - [29]; appeal ts 111, 113 - 114.

1. The appellant submits that the new evidence before the court, taken with the evidence given at trial, establishes that the appellant was not in Perth on 3 January 2012 or on any date from 1 - 4 January 2012 inclusive but was in fact in Collie and Bunbury with her family between 30 December 2011 and 6 January 2012, only returning to Perth on 7 January 2012.  That contradicts the State case that the appellant switched the Webster-pak on 3 January 2012 and precludes the possibility that she did so on 1, 2 or 4 January 2012.  Consequently, this court should be satisfied that the appellant should not have been convicted.[124]

   [124] Appellant's submissions [42] - [43]; appeal ts 125.

2. The additional evidence on which the appellant relies is detailed later in these reasons.

Ground 3

1. The appellant advances three complaints as to the judge's summing up.  First, she contends that the trial judge was required, but failed, to (i) identify that it was part of the State case that the relevant conduct concerning the placement of the substituted Webster‑pak occurred on 3 January 2012 and (ii) draw to the attention of the jury the evidence that was capable of bearing on that question.[125]

   [125] Appellant's submissions [45] - [46]; appeal ts 142 - 143.

2. Secondly, she submits that the judge's direction that the date of the offence was not an element of the offence gave rise to a miscarriage of justice.  That is because the direction was expressed in a manner that created a perceptible risk that the jury would resolve doubt as to whether the appellant was in Perth and thus able to commit the offence between 1 January 2012 and 4 January 2012 inclusive by concluding that the appellant may have done the acts in late December 2011, when to so conclude was not part of the prosecution case.[126]

   [126] Appellant's submissions [47] - [51]; appeal ts 144 - 147, 149 - 150.

3. Thirdly, she submits that the judge erred in failing to give an alibi direction in circumstances where there was evidence tending to show that the appellant was not present when the offence was committed.  Consequently, the judge erred in failing to direct the jury that the prosecution must negative the alibi beyond reasonable doubt in order for the jury to reach a verdict of guilty.[127]

   [127] Appellant's submissions [52] - [57]; appeal ts 143.

4. We begin with ground 1.

Ground 1:  unreasonable verdicts - legal principles

1. The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known.  The principles established by the leading High Court decisions have been outlined by this court many times.  See for example, Jago v The State of Western Australia.[128]  The principles are, relevantly and in summary, as follows:

   (1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence.  It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict.  The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand. 

   (2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 

   (3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.

   (4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.  The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box.  The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court. 

   (5)The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt. 

   (6)A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.

   (7)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.

   (8)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.

   [128] Jago v The State of Western Australia [2022] WASCA 2 [144].

2. The prosecution case relied on an inference.  The principles relating to criminal cases turning, as this case does, upon circumstantial evidence were restated in R v Baden‑Clay as follows:[129]

   (1)When the case against an accused 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.

   (2)The jury can be satisfied of the accused's guilt only where guilt is not simply a rational inference but, rather, the only rational inference that the circumstances permit.

   (3)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 an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.

   (4)In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.  The evidence is not to be looked at in a piecemeal fashion. 

   [129] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [46] ‑ [47].

3. The appellate court's function is to determine for itself whether the evidence was sufficient in nature and quality to remove any doubt that the appellant was guilty of the offence.[130]  The critical issue is 'whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial'.[131]  The task of this court is to undertake its own independent assessment of the whole of the evidence to determine whether the only rational inference available on the evidence was as alleged by the State and, if not so satisfied, to determine whether the jury's satisfaction could be attributed to some identified advantage that the jury had over this court.[132]

   [130] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 [7].

   [131] Dansie [16].

   [132] Dansie [37] - [38]; Lang v The Queen [2023] HCA 29 [143], [251].

4. It is necessary, next, to give closer attention to the State case at trial because, in two respects, the appellant's contentions on appeal are founded on a misconception of the State case.  First, the appellant's contentions seek to compartmentalise opportunity as a standalone topic and thereby fail to reflect the fundamental precept that the evidence in a circumstantial case must be considered as a whole.  Secondly, we do not accept the appellant's contention that the State case was ultimately confined to the appellant having done the critical act on 3 January 2012.

Ground 1:  analysis of the nature of the State case at trial

The need to consider the evidence as a whole

1. It is axiomatic that, as noted in [71](4) above, in considering a circumstantial case, the evidence must be considered as a whole.  Whether there is an inference consistent with innocence that is reasonably open on the evidence must be determined having regard to the combined force of all the circumstances, not by considering each of the circumstances in a piecemeal fashion.  This has been explained by the High Court in numerous cases.  For example, in R v Hillier,[133] Gummow, Hayne and Crennan JJ said as follows:

   Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused.  But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.  As Gibbs CJ and Mason J said in Chamberlain [No 2]:

   'At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another.  For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed.  Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence:  cf Weeder v The Queen.

   Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it.  It is well established that the jury must consider "the weight which is to be given to the united force of all the circumstances put together":  per Lord Cairns, in Belhaven and Stenton Peerage, cited in Reg v Van Beelen; and see Thomas v The Queen and cases there cited.'

   And as Dixon CJ said in Plomp:

   'All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged.  There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case.  I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.'

   [133] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [48].

2. More recently, in Lang v The Queen, Jagot J, with whom Kiefel CJ and Gageler J agreed, observed that these fundamental principles were of the utmost importance in that case.[134]  In our view, the same is true in the present case.

   [134] Lang v The Queen [251].

3. The appellant's case on appeal does not reflect this approach to evaluation of a circumstantial case.  Rather, the appellant seeks to segregate the topic of opportunity as if it were distinct from the remainder of the evidence.  The appellant's counsel submits that (i) only some of the evidence was relevant to the question of opportunity, which turned on whether the appellant had been to Mrs Baldwin's home on 1 ‑ 4 January 2012, and (ii) evidence on matters such as the appellant's admissions and her motive were not relevant to that topic, but only to the different topic of whether she did the critical act.[135]  We reject those submissions.  Neither the evidence nor the issues could be so compartmentalised.  The jury could properly reason, based upon their evaluation of the evidence as a whole, that they were satisfied that the appellant had done the critical act and thus that the appellant had gone to Mrs Baldwin's house at an unknown time sometime in the days from 1 ‑ 4 January 2012.

   [135] Appeal ts 116, 140 - 141.

4. The appellant's counsel does not go so far as to submit that opportunity was an intermediate fact that had to be proved beyond reasonable doubt.[136]  In this, counsel was undoubtedly correct.  Proof of opportunity, and to the extent the question of alibi was raised, disproving of the alibi, were not intermediate facts that were separate from proof of guilt.  Rather, they were matters to be determined having regard to the whole of the evidence.  The jury did not need to be satisfied beyond reasonable doubt that the appellant had an opportunity, and that any alibi was disproved, before deciding whether they were satisfied beyond reasonable doubt that the appellant had done the acts alleged by the State to have caused Mrs Baldwin's death. 

   [136] Appeal ts 112 - 113, 116.

5. In this respect, the present case seems to us to be analogous to the position in Wark v The State of Western Australia,[137] in which, with Mazza JA's agreement, Beech JA said:[138]

   [137] Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365 [614] - [621].

   [138] Wark [615], [619] - [620].

   The State was, undoubtedly, required to disprove the appellant's alibi beyond reasonable doubt.  However, I would not characterise it as an intermediate fact, because I do not think that disproving the alibi was necessarily a step separate from proof of guilt.  I also do not accept that the prosecution was required to prove opportunity, as a distinct matter, beyond reasonable doubt.  It is only when a fact is an indispensable link in a chain of reasoning towards guilt that it is an intermediate fact that must be proved beyond reasonable doubt.  The notion of an intermediate fact being an indispensable link involves it being a discrete step necessary in order to establish another distinct step.  The following observations of McLure P in Austic v The State of Western Australia seem to me to be applicable to the present case:

   'I do not accept the premise that either of the facts are indispensable links in a chain of reasoning towards guilt.  Whether or not an intermediate fact is an indispensable link in a chain of reasoning towards guilt depends upon the issues and evidence in a particular case.  As noted by Dawson J in Shepherd v The Queen (1990) 170 CLR 573, 581, whether or not the presence of the accused when the crime was committed is an indispensable link in the chain of reasoning depends on the circumstances of the case.

   A fact will be an indispensable link in a chain of reasoning if it is a discrete step which must be proven before addressing the next step in the reasoning process towards the ultimate inference of guilt:  Shepherd (576) (Mason CJ).  That is, proof of the fact is a necessary condition for establishing a further (and different) fact.

   The trial judge directed the jury that they had to be satisfied beyond reasonable doubt that the appellant killed the deceased, that being an element of the offence of wilful murder.  The appellant could not have killed the deceased unless he had the opportunity to and was in the presence of the deceased when she was killed.  However, opportunity and/or presence were not discrete steps in the reasoning process in this case.  All of the circumstantial evidence in the case comprised strands in a cable rather than links in a chain on the issue of whether the appellant killed the deceased.'  (emphasis added in Wark)

   …

   In my view, in the circumstances of this case, neither the alibi defence nor opportunity was an intermediate fact requiring separate proof beyond reasonable doubt, distinct from the State's onus to prove the elements of the offence beyond reasonable doubt.  The position as to each of alibi and opportunity was materially different. 

   As to alibi, of course, the matters raised in the alibi could have provided a ground on which the judge was not satisfied beyond reasonable doubt of the guilt of the appellant. If the judge had been unable to exclude the reasonable possibility that the appellant was in Moora when Ms Dodd disappeared from North West Road, so that the alibi had not been disproven beyond reasonable doubt, a verdict of acquittal was required. But, in excluding any such reasonable possibility, the State relied, and was entitled to rely, upon the same matters as it relied to establish guilt, namely those set out at [531] above. The judge did not need to be satisfied beyond reasonable doubt that the appellant's alibi was excluded before deciding whether they were satisfied beyond reasonable doubt that the appellant killed Ms Dodd. It was open for the judge to be satisfied beyond reasonable doubt, by the State evidence as a whole, both that alibi was disproved and that guilt was proved. (footnotes omitted)

The State case was not confined to the appellant doing the critical act on 3 January 2012

1. On the State case, the critical act of the appellant said to have caused Mrs Baldwin's death was, having created the substituted Webster‑pak, to place it in a location at Mrs Baldwin's house where she could be expected to find and use it.

2. We do not accept the appellant's contention that, at the trial, the State case was ultimately confined to the allegation that the appellant did the critical act on 3 January 2012.  Rather, the State case was that the appellant had so acted by no later than 4 January 2012 and that she so acted 'on or about' 3 January 2012.  Having regard to the terms of the indictment, that was properly to be taken as meaning that the appellant so acted on 1, 2, 3 or 4 January 2012.

3. In opening, the prosecutor said the State case was that the appellant left the substituted Webster‑pak where Mrs Baldwin usually kept her Webster‑paks 'at least the day before Mrs Baldwin was due to commence her next weekly cycle of medication, on Thursday, 5 January 2012'.[139]  That was why, the prosecutor added, the next two weeks of Webster‑paks were not collected.[140]

   [139] ts 92.

   [140] ts 93.

4. It can be seen that nothing in the prosecutor's opening confined the State case to 3 January 2012.  Rather, the timing of the appellant's acts was said to have been by 4 January 2012 at the latest, given that the next two weeks of Webster‑paks had not been collected.

5. In cross‑examination, the prosecutor put to the appellant that she had placed Kenneth Baldwin's Webster-pak in Mrs Baldwin's room on or about 3 January 2012.[141]

   [141] ts 1295.

6. The appellant's submissions fix upon the following part of the prosecutor's closing address:[142]

   Now, the State says on the accused's own evidence that she had the opportunity to take one of her uncle's Webster‑paks at that time, and that she did, in fact, do so, which Webster-pak was the one she put together with her grandmother's header, and left in a place where she knew her grandmother would find it.  Most likely, the State says, on her bedside table, in her grandmother's bedroom.  I will take you to Tuesday 3 January 2012.

   Now, you heard evidence from carer Helen Ruscoe that she visited Mrs Baldwin on Friday 6 January 2012, at which time Mrs Baldwin told her that her daughter and granddaughter had been there during the week.  Now, although Mrs Baldwin did not state a specific day, she told Ms Ruscoe that on the Wednesday - being 4 January 2012 - one of her carers had been there, and that her daughter and granddaughter had been there the day before - being Tuesday 3 January 2012.  Now, Ms Ruscoe gave evidence that in the context of the conversation she had with Mrs Baldwin, she understood Mrs Baldwin to be talking about Tuesday 3 January 2012.

   Now, carer Barbara Kemp - she gave evidence, and she told you that she went into Mrs Baldwin's house on this day - 3 January 2012 - and you have the MercyCare communication notes which show that.  And she gave evidence that Mrs Baldwin didn't seem any different.  Now, the State says this date - Tuesday 3 January 2012 - is important, because this is the day before Mrs Baldwin's Webster-pak medications would run out. 

   And the State says that with no other Webster-paks collected from the Ocean Village Pharmacy, that it is on this day - Tuesday 3 January 2012 - the State says the accused had the opportunity, means, and access to leave Kenneth Baldwin's full Webster-pak of medications, together with the header to her grandmother's old Webster-pak, in a place where she knew her grandmother would locate it, and use it when her Webster‑pak ran out on Wednesday 4 January2012.

   …

   Now, why does the State say that it was this day - Tuesday 3 January?  Well, the State says that in relation to the Webster-pak - being Kenneth Baldwin's Webster-pak - that this Webster-pak was the same Webster‑pak that was collected by Tania Paunich when she went to Mrs Baldwin's place on Monday 9 January 2012, and which Webster‑pak - the medications that were left in there - were analysed by the chemist.  Now, I take you to Thursday 5 January 2012.  Now, this is the day the State says Mrs Baldwin put her old header - dated 29 November 2011 - and deceased son Kenneth Baldwin's Webster-pak in her blue holder.

   You heard evidence that Mrs Baldwin always had her medication after she started getting the Webster-paks in her blue holder.  The State says that it was Mrs Baldwin.  She put the Webster-pak in, and she put the header in.  The State says that because there were no other Webster‑paks in her house, because none had been collected from the pharmacy.  They were still there.  And that it was on this date - Thursday 5 January 2012 - that Mrs Baldwin commenced taking Kenneth Baldwin's medication - including the MS Contin morphine sulfate - for breakfast and dinner.  (emphasis added)

   [142] ts 1363 - 1365.

7. In this passage, the prosecutor pointed to evidence that was capable of supporting a conclusion that the appellant was present at Mrs Baldwin's house on 3 January 2012 and, accordingly, had the opportunity to do the critical act on that day.  However, to emphasise particular evidence pointing to an opportunity on 3 January 2012 does not, thereby, make the doing of the act on that date an essential element of the State case.  As explained in opening, the State case was that the critical act was done by no later than 4 January 2012.  The presence of, and emphasis by the prosecutor on, some positive evidence of the appellant's presence on 3 January 2012 did not transform the nature of the State case. 

8. Moreover, it is clear from other parts of the prosecutor's closing address that the State case was never confined to the appellant having done the critical act on 3 January 2012.

9. A little later in closing, the prosecutor submitted that, on the State case, 'on or about 3 January 2012' the appellant had left the Webster‑pak in a location where she knew her grandmother would pick it up:[143]

   And Ms Cryer gave evidence that the last time Mrs Baldwin's Webster‑paks were collected was on Wednesday 21 December 2011, at which time two paks were collected.  Now, the pharmacy statement issued to Mrs Baldwin - which is exhibit 10 - indicated that Mrs Baldwin was invoiced for two Webster-paks on 21 December 2011.  And the State says this is consistent with the evidence of Ms Cryer.  So the next date on which Mrs Baldwin was due her Webster-pak was Wednesday 4 January 2012.  And that was the evidence of Ms Cryer.  However, those paks were not collected. 

   Now, the State says that this date - Wednesday 4 January 2012 - is important, as it was the date that Mrs Baldwin's next two Webster-paks should have been collected, due for her to commence the next cycle the next day - Thursday 5 January 2012.  But the evidence that you heard was that those paks weren't collected.  So Mrs Baldwin never got them.  Now, the reason the State says that those two paks were not collected is because on Tuesday 3 January 2012 - on or about that date - that the accused had already left the Webster-pak with her grandmother's header, and Uncle Kenneth Baldwin's medication in his Webster-pak, in a location that the accused knew her grandmother would pick it up, thinking that it was her next Webster-pak, to commence her next cycle, due to commence on the Thursday, which Mrs Baldwin did, in fact, do.

   Now, Ms Cryer gave evidence that although she didn't know which day of the week Mrs Baldwin started her medication, the dates the Webster‑paks were collected by the carers would suggest she would start the pak towards the end of the week because of the day they were collected.  And the State says that the day that Mrs Baldwin's cycle was due to commence and did commence was Thursday 5 January 2012.  So the reason why those paks weren't collected was because there was a pak already there.  (emphasis added)

   [143] ts 1374.

10. Later again, the prosecutor said that, on the State case, the appellant left the substituted Webster‑pak in a location where Mrs Baldwin would usually keep her Webster‑pak 'on or about' 3 January 2012 and at least the day before 5 January 2012, when Mrs Baldwin was due to commence her next weekly cycle of medication.[144]  That explained why the next two weeks of Webster‑paks were not collected from the pharmacy, namely because the person monitoring Mrs Baldwin's Webster‑pak would have seen the substituted one and not thought there was a need to collect another.[145]

    [144] ts 1379.

    [145] ts 1379.

11. In summary, therefore, the State case was that the appellant did the critical act at some time in the period from 1 ‑ 4 January 2012, inclusive.  The critical act would have taken very little time and could have occurred at any time (of the day or night) during those four days.  As we will return to later in these reasons, the State case did not depend on a narrow window of opportunity for the appellant to do the critical act.  On the contrary, the State case was that there was an extended period of time during which the appellant could have carried out the critical act.  This large window of opportunity necessarily affects the assessment of the evidence relied upon by the appellant at trial, and on appeal, to the effect that she lacked an opportunity to commit the crime, or that she had an alibi for the crime.

12. The appellant submits that, on the State case, the critical act must necessarily have occurred before 9.00 am on 4 January 2012.  She submits that this inference is sustained by the MercyCare aged care record recording that a carer who attended on 4 January 2012 between 9.00 am and 10.00 am prompted medication.[146]  We do not accept this submission. 

    [146] Appeal ts 102 - 103.

13. As the MercyCare aged care communication notes explain, the 'Medication Prompt Service' is to be documented by recording 'Medication Prompted' when medication is prompted to be removed from the Webster‑pak and the medication from the Webster-pak is taken.  If the medication is not taken during a medication prompt service, the carer is to document that medication was not taken and the reason for that.[147]  The evidence at trial did not establish with any reasonable degree of clarity whose responsibility it was, as between Mrs Baldwin and her carer, to monitor the availability of a future Webster‑pak.  Nor did it establish any pattern as to when, within the fortnightly cycle within which Mrs Baldwin's Webster-paks were supplied, the Webster-paks were checked in order to arrange collection of the next pair.  In that evidentiary landscape, the recording of the prompting of Mrs Baldwin to take her medication does not sustain the inference contended for by the appellant.

    [147] Exhibit 4, BGAB 103.

Ground 1:  disposition - was the verdict unreasonable?

Summary

1. In our view, it was well open to the jury, acting reasonably, to be satisfied beyond reasonable doubt as to the appellant's guilt.  Our review of the trial record has not given rise to a reasonable doubt on our part.  In short, that is because of the following, in combination:

   (1)The evidence readily proved beyond reasonable doubt that a person had deliberately killed Mrs Baldwin by placing Kenneth Baldwin's Webster‑pak in a location where Mrs Baldwin kept her Webster‑paks.

   (2)The person who so acted must have had access both to Kenneth Baldwin's unused Webster‑paks and to Mrs Baldwin's used Webster‑pak with the header dated 29 November 2011.  That person must also have known where Mrs Baldwin kept her unused Webster‑paks.  There was ample evidence, including from the appellant, that all of those things were true of the appellant.  The evidence did not suggest that the same was true for many other people.

   (3)The appellant's fingerprints were on the header dated 29 November 2011, a fact consistent with the appellant being the person who removed that header from Mrs Baldwin's Webster‑pak and affixed it to Kenneth Baldwin's unused Webster‑pak.

   (4)There was evidence of the appellant admitting that she had so acted to each of three different people on different occasions.  The record does not reveal any basis to conclude that, having seen and heard those witnesses, it was not open to the jury, acting reasonably, to accept their evidence.

   (5)The evidence at trial to which the appellant points, concerning where she was in the first week of January 2012, does not sustain a different conclusion.

   We proceed to explain this conclusion by reference to these five considerations.

The evidence proved that a person placed the Webster‑pak where Mrs Baldwin would find and use it

1. As the appellant accepts,[148] the evidence at trial comfortably sustained satisfaction beyond reasonable doubt that a person killed Mrs Baldwin by placing a Webster‑pak made up for Kenneth Baldwin containing MS Contin in a location where Mrs Baldwin kept her Webster‑paks.  That conclusion could be reached by the jury, acting reasonably, adopting the following chain of reasoning. 

   [148] Appeal ts 122 - 124.

2. First, as the appellant also accepts,[149] the jury could be satisfied by the evidence of Dr Moss and Professor Joyce that Mrs Baldwin's ingestion of morphine was a substantial cause of her death.  Both Dr Moss[150] and Professor Joyce[151] gave evidence that Mrs Baldwin's morphine toxicity was what led to her death.  Professor Joyce said that Mrs Baldwin would not have died if not for the presence of the morphine.  He considered that it was impossible to put aside the morphine as a contributor to Mrs Baldwin's illness, even though its contribution to her death could not be quantitatively determined.[152]

   [149] Appeal ts 122 - 123.

   [150] ts 807 - 808, 815 - 816.

   [151] ts 858 - 859, 887, 895 - 896.

   [152] ts 915.

3. Secondly, it was open to the jury, acting reasonably, to infer that Mrs Baldwin had ingested morphine by taking MS Contin tablets from the Webster‑pak that was found by Ms Paunich on Monday, 9 January 2012, from which four days of MS Contin tablets - namely Thursday, Friday, Saturday and Sunday - were missing.

4. Thirdly, the evidence established that the Webster‑pak found by Ms Paunich was not one of Mrs Baldwin's Webster‑paks.  With the exception of the presence of Panadol Osteo, the medications contained in the Webster‑pak mirrored those that were taken by Kenneth Baldwin.  This is apparent from a comparison of exhibit 17 - a client profile for Kenneth Baldwin from his pharmacist - with exhibit 21, which sets out the results of samples taken from the Webster‑pak found on 9 January 2012.

5. Fourthly, the Webster‑pak found by Ms Paunich had a header in the name of, and with the details of, Mrs Baldwin.  The placement of that header with the medications taken by Kenneth Baldwin was powerful evidence that a person had attempted to create the false impression that the medications were Mrs Baldwin's.

6. Fifthly, the fact that the found Webster‑pak also had Panadol Osteo in the lunch doses was apt to create the same false impression.  Kenneth Baldwin did not take Panadol Osteo; Mrs Baldwin did.  The insertion of the Panadol Osteo into Kenneth Baldwin's Webster‑pak suggests an intention to make the Webster‑pak better resemble Mrs Baldwin's Webster‑pak.

7. Sixthly, the evidence at trial excluded, as a reasonable hypothesis, the possibility that Mrs Baldwin deliberately or inadvertently consumed medication from a Webster‑pak of Kenneth Baldwin. The hypothesis of deliberate consumption is inherently fanciful. There is no reason why Mrs Baldwin would have chosen to take the MS Contin tablets one dose at a time. Nor, on that hypothesis, is there any reason she would have placed the header dated 29 November 2011 on the Webster‑pak. The presence of the Webster‑pak header in Mrs Baldwin's name is inconsistent with the inadvertent hypothesis. On that hypothesis, there would also have been no reason for the insertion of the Panadol Osteo in the lunch doses of the Webster‑pak. Moreover, Mrs Baldwin expressed concern both to her pharmacist, Leith Engdahl,[153] and to Mrs Ricciardo[154] and Dr Ricciardo,[155] that her medication had been changed.

   [153] ts 609.

   [154] ts 449 - 450.

   [155] ts 468 - 470.

8. Thus, the evidence established beyond reasonable doubt that a person placed the Webster‑pak, namely the pack ultimately found by Ms Paunich, in a location where Mrs Baldwin kept her Webster‑paks and, in so acting, that person killed Mrs Baldwin.  It is not in dispute that it was well open to the jury to infer, as we would, that the person who so acted intended to kill Mrs Baldwin or to cause her a bodily injury of such a nature as to endanger her life.

The appellant's access to Kenneth Baldwin's and Mrs Baldwin's Webster‑paks and her knowledge of where Mrs Baldwin kept her Webster‑paks

1. In order to do the critical act, the person who so acted must have had access both to Kenneth Baldwin's unused Webster‑pak and to the Webster‑pak used by Mrs Baldwin that had had a header dated 29 November 2011. 

2. On the evidence, the appellant was one of very few people of whom that could be said.  There was evidence that the appellant knew that Kenneth Baldwin had three unused Webster‑paks, which she had seen in the course of packing boxes of things at Kenneth Baldwin's house.[156]  The presence of the appellant's fingerprints on the header was compelling evidence that she had had access to Mrs Baldwin's Webster‑pak from which the header had originally come.  We will return to the significance of the presence of the appellant's fingerprints on the header.

   [156] Video Record of Interview dated 9 November 2018 ts 114, 123 - 124. 

3. The person who performed the critical act of placing the Webster‑pak must also have known where Mrs Baldwin kept her Webster‑pak.  That was true of the appellant.  During her interview, the appellant told police that Mrs Baldwin kept her current Webster‑pak next to her armchair.[157]  She also told the police that Mrs Baldwin kept the following week's Webster‑pak on her bedside table, from which, on one occasion, Mrs Baldwin had the appellant go and bring her the Webster‑pak.[158]  The appellant gave evidence to similar effect at the trial.[159]  Anne Baldwin also gave evidence to similar effect.[160]

   [157] Video Record of Interview dated 15 October 2018 ts 46, 52, 74.  Video Record of Interview dated 9 November 2018 ts 155 - 156, 158.  

   [158] Video record of interview dated 9 November 2018 ts 162 ‑ 164, 193, 196. 

   [159] As to the current Webster‑pak, see ts 1137 - 1138.  As to seeing or retrieving the spare Webster‑pak on or from the bedside table, see ts 1128, 1170, 1200, 1205 - 1206.

   [160] ts 314 - 315.

4. On the evidence at trial, the only other person who evidently had access both to Kenneth Baldwin's unused Webster‑paks and to Mrs Baldwin's used Webster‑pak was Anne Baldwin.  On the evidence, Sarah Baldwin was not such a person.  On Sarah's unchallenged and uncontradicted evidence, she had been estranged from Mrs Baldwin since about 2009 and had last seen her in June 2011 at Kenneth Baldwin's funeral.  Sarah Baldwin's fingerprint was not found on the header or other material from which latent fingerprints were developed.[161] 

   [161] ts 947 - 949, 951.

5. The need for the person who placed the Webster‑pak in Mrs Baldwin's house to have had access to both Webster‑paks and to have known where Mrs Baldwin kept her Webster‑paks greatly reduced the range of possible persons who could, reasonably possibly, have performed the critical act.  At the least, that need made it highly unlikely that a person outside a narrow range of possibilities was the person who did the critical act.

The appellant's fingerprints on the header

1. As already noted, the evidence established that the appellant's fingerprints were on both sides of the header dated 29 November 2011.  In order to have caused Mrs Baldwin's death in the manner alleged by the State, the person involved must have removed the header dated 29 November 2011 from Mrs Baldwin's Webster‑pak and placed it on Kenneth Baldwin's unused Webster‑pak.  Thus, the person who did the critical act must necessarily have handled the header.  In that manner, the presence of the appellant's fingerprints on the header is consistent with the appellant having been the person who created, and then placed, the substituted Webster‑pak.

1. Vicki Smith gave evidence, both in her affidavit[319] and in cross‑examination,[320] that David Sturniolo was in Collie for the entire nine days from 30 December 2011 to 7 January 2012.  Even on the appellant's evidence, that is not so, as the appellant says that her husband went back to Perth on 2 January 2012.  In any event, as already noted, we are satisfied that Mr Sturniolo did not go to Ms Smith's Collie property at all over the weekend from 30 December 2011 to 2 January 2012.

   [319] Affidavit of Vicki Margaret Smith [1.1].

   [320] Appeal ts 27.

2. Ms Smith's wrongful assertion that Mr Sturniolo was present for all nine days significantly undermines the reliability of her assertion that the appellant was present in Collie for the same period.  Further, in light of the linguistic and other textual features common as between Ms Smith's affidavit and Anne Baldwin's affidavit, we are not satisfied that the contents of Vicki Smith's affidavit reflect her independent recollection of the course of events some 10 years earlier.

3. Nor are we satisfied as to the reliability of the evidence of Anne Baldwin.  We are by no means persuaded that the contents of her affidavit and the appellant's affidavit each represent the deponent's independent recollection.  Anne Baldwin herself had an intensely problematic relationship with Mrs Baldwin.[321]  As already explained, Anne Baldwin is, with the appellant, one of only two readily identifiable people who had access both to Kenneth Baldwin's unused Webster‑paks and to Webster‑paks that had been used by Mrs Baldwin.  At trial, the defence case was that an alternative reasonable inference, consistent with the appellant's innocence, was that Anne Baldwin had caused Mrs Baldwin's death.  Anne Baldwin was cross‑examined at trial by senior counsel for the appellant as to whether she had left medication at Mrs Baldwin's house in a place that Anne Baldwin knew Mrs Baldwin might take the medication in the hope that Mrs Baldwin might take it, thereby accelerating her death.[322]  She was asked whether, and she denied that, she had put one of Kenneth Baldwin's Webster‑paks in a drawer of Mrs Baldwin's wardrobe.[323]  During the trial, Anne Baldwin expressed regret that she had intervened when Kenneth Baldwin was 'belting the shit' out of Mrs Baldwin, thereby stopping him from killing her.[324]  In her evidence in the appeal, when asked in cross‑examination whether she was in any way involved in Mrs Baldwin's death, Anne Baldwin said, 'No, but I wish. … I applaud'.[325]

   [321] See, for example, Anne Baldwin's evidence at trial in cross‑examination at ts 312 and in re-examination at ts 338 - 339.

   [322] ts 325.

   [323] ts 326.

   [324] ts 340.

   [325] Appeal ts 18.

4. For these reasons, we would refuse the appellant's application to adduce additional evidence and would refuse leave to appeal on ground 2.

Ground 3:  disposition

1. The appellant's three complaints as to the judge's summing up are outlined in [66] ‑ [68] above.

2. The first complaint is that the trial judge failed to identify that it was part of the State case that the critical act occurred on 3 January 2012 and failed to draw to the jury's attention the evidence that was capable of bearing on that question.  That contention fails for two reasons, both of which have been developed at length already.  First, the State case was not confined to the appellant doing the critical act on 3 January 2012:  see [79] ‑ [90] above.  Secondly, as explained in [74] ‑ [78] above, the question of opportunity - and the evidence relating to that issue - were not to be compartmentalised and considered in isolation from the whole of the evidence.

3. The appellant's second complaint is that the judge's direction that the date of the offence was not an element of the offence gave rise to a perceptible risk that the jury would resolve doubt as to whether the appellant was in Perth and thus able to commit the offence between 1 January 2012 and 4 January 2012 by concluding that the appellant may have done the critical act at a different time, namely in late December 2011.

4. We are not persuaded that the trial judge's direction gave rise to any such perceptible risk.  The material part of the judge's direction was in the following terms:[326]

   The State alleges the events with which we are concerned occurred on the date and at the place specified in the charge being between 1 January 2012 and 16 January 2012 at Wembley Downs.  So, in essence, the State is relying on a range - on a period rather than a specific date on the basis that the events that led to Mrs Baldwin's death commenced with the actions of the accused in switching the medication, putting the header from Mrs Baldwin's Webster-pak on the Webster-pak for Kenneth Baldwin, and that it then continued because it was necessarily an offence that had to occur over a period of time in the sense that it required Mrs Baldwin to take the medication, it then required the medication to have the effect that the State alleges that it did have in terms of morphine toxicity which has then resulted in her death as a result of the deterioration of her health, and her death occurs on 16 January 2012 but the allegation is that the offence has been committed over that period.  That's the end date of the period because that is when Mrs Baldwin died but it's committed over that period because it starts with the accused's actions which occurred earlier in January.

   So that is the basis for those dates but you don't need to be satisfied specifically about when it was, what particular date it was, that the accused did the actions except to the extent that it might affect your determination of whether she did do the things alleged by the State.  Similarly, it refers to Wembley Downs, although, ultimately, Mrs Baldwin died at Sir Charles Gairdner Hospital.  So it includes, obviously, the place where she died.  But, again, it's not the place of the offence, it's not critical.  The allegation is clear enough.  These particulars, the date and the place, are there to identify for the accused where the offence and how the offence is alleged to have occurred.  (emphasis added)

   [326] ts 1513.

5. The appellant's submissions fix on the italicised passage in the second paragraph of this extract.  However, understood in the context of the paragraph immediately preceding it, we think that the natural sense of this passage is that the jury did not need to be satisfied about which particular date within the stipulated date range the accused did the relevant act.  Moreover, in the italicised passage in the second paragraph, the judge said, in effect, that the jury should be concerned about when the appellant did the relevant act if and to the extent that the timing of the act might affect their determination of whether the appellant acted as alleged.

6. Further and in any event, the prosecutor did not suggest, at any stage of the trial, that the appellant may have done the critical act at any time outside the date range alleged in the indictment.  Nor, on our analysis of the evidence as already detailed, did the evidence give rise to any reason to suppose that this may have been so.  In the circumstances of the trial, there was no perceptible risk that the jury would reason in the manner asserted by the appellant.

7. That conclusion is reinforced by the fact that experienced trial counsel did not seek a redirection in relation to the complaint that the appellant now makes.  While the failure of counsel to seek a direction or redirection is not fatal to a successful challenge in a case in which a redirection is said to have been required to avoid a perceptible risk of a miscarriage of justice, the absence of an application for a redirection may tend against a finding that such a risk was present.[327]

   [327] De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57 [35]; Hamilton [54] ‑ [56].

8. The appellant's third complaint - that the judge erred in failing to give an alibi direction when one was required - fails for two reasons.

9. First, as concluded in [181] above, from the outline of evidence in [175] ‑ [180] above, neither the appellant's evidence nor the evidence of Anne Baldwin supported a conclusion that the appellant was in Collie for the whole of the days from 1 ‑ 4 January 2012, inclusive.  The State case being that the appellant committed the offence on a day and at a time unknown within that four‑day timespan, the evidence to which the appellant points as giving rise to an alibi, taken at its highest, is not properly so characterised.  Given the vagueness of the appellant's evidence at trial and the uncertain terms in which it was expressed, her evidence reduces, but does not eliminate, the opportunities for the appellant to have been present at Mrs Baldwin's home to commit the offence within the relevant four‑day timespan.  That being so, no alibi direction was called for.  Indeed, to have given one would have been both misleading and confusing for the jury.

10. Secondly, and alternatively, even if the evidence to which the appellant points, taken at its highest, was thought to encompass the whole of the period of time during which the appellant was alleged to have committed the offence, in our view, given the issues at trial and the terms of the judge's summing up as a whole, the absence of an alibi direction would not have given rise to a miscarriage of justice.

11. As was said long ago by Lord Parker CJ in R v Wood (No 2),[328] there is no absolute rule of law requiring an alibi direction in every case where there is some evidence of alibi.  Rather, such a direction should be given wherever it is necessary to guard against a perceptible risk that a jury will make a finding of guilt by impermissible reasoning.  In this respect, the position is analogous to the question of when a Liberato direction is required.[329]

    [328] R v Wood (No 2) (1967) 52 Cr App R 74, 78.

    [329] As to which see De Silva [4], [10]; Ruthsalz v The State of Western Australia [2018] WASCA 178 [191]; DLS v The State of Western Australia [2021] WASCA 197 [84](1).

12. The purpose and effect of an alibi direction is to guard against a perceptible risk that a jury might reason impermissibly in believing or assuming that an accused person has a burden to prove their alibi or by reasoning that rejection of the alibi itself leads to a finding of guilt.  The appellant not having led evidence of alibi in chief and not having advanced an alibi case, there is no reason to suppose that the jury would have considered that the appellant had any burden of proof.  In any event, the trial judge's conventional directions as to the burden and standard of proof, and his Honour's Liberato direction, the terms of which are outlined in [45] and [46] above, were comfortably sufficient, in our respectful view, to eliminate any such perceptible risk in the present case. 

13. For these reasons, we would refuse leave to appeal in respect of ground 3.

Conviction appeal:  conclusion

1. For the above reasons, we would refuse the appellant's application to adduce additional evidence, refuse leave to appeal on each ground of appeal and dismiss the appeal.

The sentence appeal

Introduction

1. The appellant challenges the trial judge's sentence of life imprisonment with a minimum term of 20 years.  Her sole ground of appeal contends that the sentence was manifestly excessive.  It is clear from the appellant's submissions that she does not challenge the imposition of a life sentence.  The appellant's ground of appeal is directed to the length of the minimum term she is required to serve before becoming eligible for parole.

2. For the reasons that follow, the ground of appeal is not made out.

The facts of the offending

1. The judge made very detailed findings of fact in the course of his sentencing remarks.[330]  It is not necessary to set out all of those findings.

   [330] The State of Western Australia v Sturniolo [2021] WASCSR 47 (sentencing remarks) [15] ‑ [101].

2. The judge considered that it followed from the jury's findings that they were satisfied that the appellant caused Mrs Baldwin to take medication belonging to Kenneth Baldwin, in particular the MS Contin tablets, the consumption of which led to Mrs Baldwin's death.  She did this by removing the header dated 29 November 2011 from Mrs Baldwin's used Webster‑pak and placing it on a Webster‑pak that had belonged to Kenneth Baldwin and that contained the MS Contin tablets.  The appellant inserted Panadol Osteo tablets into Kenneth Baldwin's Webster‑pak to make it appear like Mrs Baldwin's usual Webster‑pak.  The appellant then placed the modified Webster‑pak in a place where she knew Mrs Baldwin usually kept her medication, most likely on the bedside table in her bedroom.[331]  This occurred on or around 3 January 2012.[332]

   [331] Sentencing remarks [2].

   [332] Sentencing remarks [64] - [70].

3. The judge was satisfied beyond reasonable doubt that, in so acting, the appellant intended to cause Mrs Baldwin's death.[333]

   [333] Sentencing remarks [3], [91].

4. The trial judge was satisfied that the appellant retained a header from Mrs Baldwin's Webster‑pak dated 29 November 2011 when, as she described in her evidence, the appellant threw the Webster‑pak away in early December 2011.[334]  Consequently, the judge found that the appellant had the offence in contemplation from early December 2011.  His Honour found that by early December 2011, the appellant had decided on a plan to kill Mrs Baldwin by swapping Kenneth Baldwin's Webster‑pak with Mrs Baldwin's Webster‑pak.  His Honour observed that that was a significant period of premeditation.[335]

   [334] Sentencing remarks [58] - [59].

   [335] Sentencing remarks [98].

5. The judge accepted the evidence of admissions made by the appellant to each of Sarah Baldwin,[336] Patrick Gage[337] and Brent Mynard.[338]

   [336] Sentencing remarks [83] - [85].

   [337] Sentencing remarks [93].

   [338] Sentencing remarks [95].

6. The judge found that in committing the offence, the appellant was motivated by animosity towards Mrs Baldwin because of the way she had treated the appellant, Sarah Baldwin and, especially, Anne Baldwin.  The judge accepted that a motive to gain financially might be regarded as a more severe aggravating factor.  Nevertheless, his Honour considered the appellant's conduct to be morally inexcusable, in that she took it upon herself to determine when Mrs Baldwin's life should end, when Mrs Baldwin still had a life to live and friends who valued her company.[339]

The appellant's personal circumstances

[339] Sentencing remarks [99] - [101].

1. The appellant was 29 years old when she committed the offence and 39 when she was sentenced.

2. The appellant has a very close relationship with her mother.  Her mother was a victim of domestic violence at the hands of her ex‑husband.  The appellant suffered abuse as a child that has caused her trauma throughout her life.

3. The appellant faced some challenges at school, having to repeat some years of school.  She left school in year 11, having repeated that year.  Since leaving school, the appellant has been employed in various retail positions.

4. The appellant met her husband while she was a teenager.  They have two children, who were 14 years old and 11 years old at the time of sentencing.  Both children suffer from developmental disorders.  The judge found that the appellant loves her children very much, and that her incarceration since her arrest has placed great pressure on both the appellant and her children.[340]

   [340] Sentencing remarks [118].

5. The judge found that, the appellant not having a prior criminal record, she came before the court as a person of prior good character.[341]

   [341] Sentencing remarks [124].

6. The sentencing judge noted that the appellant reported that she suffered from depression and intermittent, but persistent, mental health difficulties, sleep apnoea, narcolepsy and anxiety.[342]

   [342] Sentencing remarks [127].

7. The judge considered the report of a psychologist, Ms Tina Marley.  On the basis of Ms Marley's report, the judge accepted that the appellant met the diagnostic criteria for a Major Depressive Disorder.  Ms Marley considered that the appellant was likely to be prone to self‑criticism, have hypervigilance with regard to interpersonal relationships, and a tendency to submit to please others.  Ms Marley found no evidence that the appellant suffered from personality pathology or psychopathic personality features that might explain the commission of the offence.

8. Having regard to Ms Marley's opinion, his Honour considered that the risk of violent reoffending was low and the need for personal deterrence was not significant.[343]

Sentencing remarks

[343] Sentencing remarks [133] - [136].

1. The judge found that there were a number of aggravating features of the appellant's offence that placed her offending at a high level of seriousness, namely:

   (1)The appellant had an intention to kill.

   (2)The appellant's offence was premeditated for a period of about a month.

   (3)Mrs Baldwin was vulnerable, being elderly and unwell with a pre‑existing chronic medical issue.

   (4)Mrs Baldwin was the appellant's grandmother, so the appellant had abused the trust inherent in that relationship.

   (5)The offending conduct occurred in Mrs Baldwin's home, where she was entitled to feel safe.

   (6)Mrs Baldwin became affected by the MS Contin after 12 hours of commencing to take the medication and she began hallucinating after three days.  She spent seven days in hospital before she died.  Mrs Baldwin would have been distressed and confused in her brief periods of lucidity while hospitalised.

2. The judge found, contrary to the State's submissions to the sentencing judge, that there was some mitigation in favour of the appellant.  The judge found that the appellant's prior good character provided some degree of mitigation and his Honour noted the lack of a need for personal deterrence in the case.

3. The judge found that remorse was not a mitigating factor in the appellant's favour.  While the appellant showed some regret for her actions on the day that Mrs Baldwin was taken to hospital, the appellant did nothing to inform the medical authorities about what she had done.[344]

   [344] Sentencing remarks [102] - [103].

4. The judge outlined the general considerations relevant to the fixing of the minimum term.  His Honour observed that the unusual circumstances of this case meant that it stood on its own;[345] it was not possible to find any case that was directly comparable, so that the judge had to determine the case on his own view of the seriousness of the offence.[346]

   [345] Sentencing remarks [141].

   [346] Sentencing remarks [144].

5. The sentencing judge referred to the observation of Mitchell J in Corbett v The State of Western Australia[347] that it was not uncommon for minimum terms in the range of 17 ‑ 23 years to be imposed for single offences of murder, including in cases where there has been a plea of guilty and/or an absence of any intention to kill.

   [347] Corbett v The State of Western Australia [2016] WASCA 97.

6. The judge sentenced the appellant to a term of life imprisonment, with a minimum of 20 years before being eligible for release on parole.  His Honour ordered that the sentence be taken to have commenced on 10 November 2018, which was the date that the appellant went into custody following her arrest.

Ground of appeal

1. The appellant's sole ground of appeal asserts that the sentence imposed was manifestly excessive in the circumstances of the case.

Appellant's submissions

1. The appellant submits that her health and her family's health has been in decline since she was first taken into custody in 2018.  She points to her daughter's situation and the consequences for her daughter of the appellant's incarceration.  The appellant also submits that her husband has had to cease employment in order to become a full‑time carer for the appellant's daughter and for Anne Baldwin, so as to replace the appellant.

2. The appellant refers to authorities concerning the effect of delay and the circumstances in which it can be a mitigating factor.

1. The appellant also points to two cases said to be comparable:  The State of Western Australia v Smith[348] and Prestidge v The State of Western Australia.[349]

Disposition

[348] The State of Western Australia v Smith [2015] WASCA 87; (2015) 250 A Crim R 468.

[349] Prestidge v The State of Western Australia [2014] WASCA 16.

1. The following principles are well established.

2. A ground of appeal which alleges that a sentence, including a minimum term, is manifestly excessive asserts an implied or inferred error.  Implied error arises where the end result is so unreasonable or unjust that the appellate court must conclude that there has been some misapplication of principle in the exercise of the sentencing judge's discretion.

3. In determining whether a minimum term is excessive, it is necessary to have regard to the principles applicable to the fixing of the minimum term and the factors which a sentencing judge must take into account.  Relevant factors include the maximum penalty for the offence, any upper or lower limits on the available minimum term, the standards of sentencing customarily observed with respect to minimum terms for that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

4. A non‑parole period is the minimum period of imprisonment that justice requires the offender to serve.  It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum term.

5. The guidance afforded by comparable cases is flexible rather than rigid.  The mere fact that a non‑parole period is within the range of other non‑parole periods imposed for similar offending does not of itself necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact that a non‑parole period is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.  The sentencing range is a factor in deciding whether a sentence is manifestly excessive.  However, the sentencing range does not fix the bounds of a sound exercise of the sentencing discretion in a particular case.

6. Applying these principles, it cannot be said that the minimum term of 20 years' imprisonment imposed in sentencing the appellant is manifestly excessive.

7. The appellant's offence had several aggravating features, as identified by the sentencing judge:  see [283] above.  Bearing in mind the appellant's plea of not guilty and absence of remorse, there were few mitigating factors in her favour.

8. Contrary to the appellant's assertion, the judge did not fail to take into account the effects of the appellant's sentence on her family.  Rather, the judge applied the well‑established principles that limit the circumstances in which, and extent to which, hardship to the family caused by an offender's imprisonment can properly reduce the sentence to be imposed for the offender's offence, particularly where, as here, the offence is of a very serious character.  The judge's approach to this aspect of the sentencing process does not reveal error.

9. Insofar as the appellant points to delay as a mitigating factor, delay of itself is not mitigatory.  Delay in combination with other relevant sentencing factors favourable to the offender, such as progress towards rehabilitation, may be mitigatory.[350]  In the present case, there was no unreasonable delay on the part of the prosecution, which could not be progressed until Sarah Baldwin reported the admissions that the appellant had made to her.  The judge recognised that the appellant had not committed any offence in the period between the commission of the offence and being sentenced.  Otherwise, in the circumstances of this case, the delay between the commission of the offence and the charging of the appellant was not significantly mitigatory.

   [350] As to the principles concerning delay as a sentencing factor, see Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164 [31] - [32].

10. The two cases to which the appellant points as comparable cases do not assist her in demonstrating error on the part of the sentencing judge in the present case.  Comparison with two cases is an insecure foundation to infer error in a particular case.[351]  Further and in any event, the circumstances of those two cases are so different to the present case that each of them provides little assistance in discerning whether the minimum term imposed on the appellant exceeds the bounds of a reasonable exercise of the sentencing discretion.

The sentencing appeal:  conclusion

[351] See, for example, The State of Western Australia v Stoeski [2016] WASCA 16 [91].

1. For the above reasons, while we would grant leave to appeal, we would dismiss the appeal against sentence.

Orders

1. We would make the following orders:

   (a)In the conviction appeal (CACR 168 of 2021):

   1.Leave to adduce additional evidence is refused.

   2.Leave to appeal is refused.

   3.The appeal is dismissed.

   (b)In the sentence appeal (CACR 167 of 2021):

   1.The application for an extension of time is granted.

   2.Leave to appeal is granted.

   3.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AE

Associate to the Honourable Justice Beech

20 OCTOBER 2023