Milner v The Queen - [2019] NZCA 619

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA120/2014
[2019] NZCA 619

BETWEEN	HELEN ELIZABETH MILNER Applicant
AND	THE QUEEN Respondent

Hearing:	2 October 2019
Court:	Kós P, Miller and Cooper JJ
Counsel:	R G Glover for Applicant F R J Sinclair and B F Fenton for Respondent N M Pender and A C Dartnall for Lee-Anne Cartier as Interested Party
Judgment:	5 December 2019 at 9 am

JUDGMENT OF KÓS P, MILLER AND COOPER JJ

AWe determine the application as a full court of the High Court.
BThe application for release of bodily samples of the deceased for further scientific testing is granted.

C The parties are to submit a consent memorandum as to terms.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Ms Milner was convicted of the murder by poisoning of her husband, Philip Nisbet. He died in 2009, evidently as the result of an overdose of the drug promethazine hydrochloride. Ms Milner was also convicted on one count of attempted murder by poisoning some two weeks before Mr Nisbet died. Ms Milner was sentenced by Gendall J to life imprisonment with a minimum period of imprisonment of 17 years.[1]
[1]R v Milner [2014] NZHC 233.
An appeal against conviction to this Court failed.[2] The Court assessed the Crown case as “a strong circumstantial” one, referring to evidence of Ms Milner purchasing quantities of the drug under an assumed name, being seen to crush pills, expressing a wish to kill Mr Nisbet by using drugs, wanting to obtain the benefit of an insurance policy over Mr Nisbet’s life, and the writing of a suicide note purportedly by Mr Nisbet being more consistent with her spelling than his.[3] Leave to appeal further was declined by the Supreme Court.[4]
[2]Milner v R [2014] NZCA 366.
[3]At [38]–[53].
[4]Milner v R [2015] NZSC 38, (2015) 27 CRNZ 412.
Ms Milner wishes now to advance an application to the Governor-General for exercise of the Royal prerogative of mercy. To support that application, she wishes to have scientific testing undertaken on biological samples from Mr Nisbet’s body that remain in the possession of the Institute of Environmental Science and Research (ESR).[5] It is proposed the testing be undertaken by Professor Johan Duflou, a consulting forensic pathologist at the University of Sydney.
[5]The biological samples are, we understand, minute or microscopic samples of Mr Nisbet’s hair, liver, blood and urine.
There was no contest at trial as to cause of death. It was accepted that Mr Nisbet died as the result of an overdose of promethazine hydrochloride. The defence theory at trial was suicide: Mr Nisbet may have self-administered the drug, which had killed him. The defence theory now, which it is hoped the testing may help sustain, is that Mr Nisbet may not have ingested sufficient quantities of the drug to cause death at all, and that he died as a result of a latent heart condition.
The new…

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 The Queen

Details

AGLC: Milner v The Queen [2019] NZCA 619
Case: [2019] NZCA 619
Decision Date: 5 December 2019 at 9 am

CaseChat Overview and Summary

In Milner v The Queen, Helen Elizabeth Milner appealed against her conviction for the murder of her husband, Philip Nisbet, who died from an overdose of promethazine hydrochloride. The Court of Appeal of New Zealand was required to decide the jurisdictional issues surrounding the release of bodily samples of the deceased for further scientific testing. The primary legal issues were whether any court had jurisdiction to make the orders for further testing and, if so, what orders should be made.

The Court of Appeal held that the High Court had jurisdiction to make the orders for further testing under Section 324 of the Criminal Procedure Act. The court determined that the biological samples were "other things connected with the trial" and remained within the control of the trial court, which was the High Court. The court concluded that the High Court retained jurisdiction to order the release of the samples for testing, and it was not the function of any court to prejudge an application for the exercise of the prerogative of mercy. The Court of Appeal accepted that the scientific testing should occur under appropriate conditions as the Crown did not oppose testing.

The Court of Appeal granted the application for the release of bodily samples of the deceased for further scientific testing. The parties were invited to submit a consent memorandum prescribing the terms of the release.

Orders