Milner v R - [2015] NZSC 38

IN THE SUPREME COURTOF NEW ZEALAND

SC 88/2014
[2015] NZSC 38

BETWEEN	HELEN ELIZABETH MILNER Applicant
AND	THE QUEEN Respondent

Hearing:	16 February 2015
Court:	Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ
Counsel:	R G Glover, M I Sewell and A C Kelland for Applicant M J Lillico and K J Basire for Respondent
Judgment:	16 April 2015

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant, Helen Milner, was charged with the murder of her husband, Philip Nisbet, on 4 May 2009 and two charges of his earlier attempted murder. At the trial it was accepted that Mr Nisbet had died from an overdose of the drug promethazine hydrochloride, sold under the trade name Phenergan. The Crown case was that Ms Milner drugged Mr Nisbet without his knowledge. The defence case was that the drug had been self-administered and the death was suicide. The jury rejected the defence contention and convicted the applicant of murder and of one of the counts of attempted murder.
Ms Milner appealed to the Court of Appeal against both convictions.Ms Milner appealed the murder conviction on the basis that the verdict was unreasonable because the Crown had not proved beyond reasonable doubt how the drug, which in the quantities required to kill was bitter, had been administered without Mr Nisbet’s knowledge. The appeal against the attempted murder conviction stood or fell with the appeal against the conviction for murder.The Court of Appeal dismissed the appeal.[1] It held that the manner of administration of the drug was not an element of the offence and was not one of the rare collateral circumstances which must be proved beyond reasonable doubt illustrated by Turner J in Thomas v the Queen[2] by reference to R v Dehar,[3] a case concerning reliance on lies. The Court considered that the question how the drug was administered was “not of the same character”[4] as the lies in issue in Dehar and was “just a factor to be assessed in the context of the other circumstantial evidence”.[5] The issue had been fully ventilated at the trial and the trial Judge had placed it squarely before the jury by directing the jury it had to be sure that Ms Milner had drugged Mr Nisbet “with Phenergan without his knowledge”.[6] The Court set out at some length the strong circumstantial evidence against Ms Milner.[7]
[1]Milner v R [2014] NZCA 366 (Ellen France, Randerson and Harrison JJ).
[2]Thomas v The Queen [1972] NZLR 34 (CA).
[3]R v Dehar [1969] NZLR 763 (CA).
[4]Milner v R [2014] NZCA 366 at [21].
[5]At [22].
[6]At [22].
[7]At [25]–[53].
Ms Milner sought leave to appeal to this Court against the Court of Appeal judgment. The sole ground in the application for leave to appeal was that the mode of administration of the drug, although not an ingredient of the offence of murder, was so fundamental to the Crown case that the verdicts…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Milner v R

Details

AGLC: Milner v R [2015] NZSC 38
Case: [2015] NZSC 38
Decision Date: 16 April 2015

CaseChat Overview and Summary

Helen Milner was convicted of murdering her husband, Philip Nisbet, and two counts of his attempted murder. Milner appealed to the Court of Appeal against her convictions, arguing that the Crown had not proved beyond reasonable doubt how the drug, which in the quantities required to kill was bitter, had been administered without Mr Nisbet’s knowledge. The Court of Appeal dismissed the appeal, holding that the manner of administration of the drug was not an element of the offence and was not one of the rare collateral circumstances which must be proved beyond reasonable doubt. Milner sought leave to appeal to the Supreme Court against the Court of Appeal judgment, arguing that the mode of administration of the drug, although not an ingredient of the offence of murder, was so fundamental to the Crown case that the verdicts were unsafe unless the Crown established beyond reasonable doubt how Milner administered the drug to Nisbet without his knowledge. The court dismissed the application for leave to appeal. The court held that the manner of administration of the drug was not comparable to the fact of lying in issue in R v Dehar, where without proof that the defendant had lied in his evidence there was insufficient evidence to establish the charges beyond reasonable doubt. There was, too, risk in Dehar of impermissible reasoning by the jury. By contrast, the circumstantial evidence against Milner, as the Court of Appeal said, was substantial. It included expressions of intent by her to others, purchases of promethazine and the presence of promethazine in Nisbet’s system. The question how the drug was administered without Nisbet’s knowledge was one circumstance to be set in the wider context. It was fully canvassed at the trial. The jury was directed by the Judge it had to be sure that Milner had drugged Nisbet “with Phenergan without his knowledge”. That was the fact that had to be proved to the satisfaction of the jury and to the standard beyond reasonable doubt. The jury was left in no doubt as to that requirement. There was no risk of miscarriage of justice. The informal application for leave to appeal to this Court on the basis of the expert opinions provided to the Court by memorandum of 23 January 2015 is declined.

Orders