The Queen v Colin David Bouwer

IN THE COURT OF APPEAL OF NEW ZEALAND

CA418/01
CA431/01

THE QUEEN

COLIN DAVID BOUWER

Hearing:	18 June 2002
Coram:	Blanchard J Tipping J McGrath J
Appearances:	D J More and M A Stevens for Appellant S P France, R P Bates and M F Laracy for Crown
Judgment:	24 June 2002

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

After a trial by Judge and jury in Christchurch Dr Bouwer was convicted of the murder of his wife, Annette, at Dunedin on 5 January 2000. He appeals against that conviction. He received the mandatory sentence of life imprisonment. The sentencing Judge also directed under s80 of the Criminal Justice Act 1985 that he must serve a minimum term of imprisonment of 13 years. The Solicitor-General seeks leave to appeal against that minimum term on the ground that it is manifestly inadequate.
The Crown case against Dr Bouwer was a strong one. We now summarise the main points, although what follows does not cover all of the incriminating evidence. Dr Bouwer was a medical practitioner practising and teaching as a psychiatrist at the Dunedin School of Medicine. As such, he had the ability to write prescriptions for prescription medicines. Using this ability he wrote out false prescriptions, purportedly for patients, and obtained quantities of sulphonylurea drugs which have the effect of lowering blood sugar levels in the body. He also by this means obtained sedatives. Over a period of more than two months he administered those drugs to his wife. As a result, she was twice admitted to hospital in a hypoglycaemic coma. Hypoglycaemia is the term used to describe the medical condition when blood sugar levels are below normal. The brain becomes starved of oxygen and the resulting symptoms can be weakness, blurred vision, coma and ultimately death if the condition is not treated. It is, however, a condition which is quite simple to treat with glucagon and glucose to raise the patient’s blood sugar level.
Mrs Bouwer’s first admission to hospital was on 20 November 1999. Significantly, Dr Bouwer had used false prescriptions to obtain sulphonylurea drugs on 16 and 17 November. A screening test carried out on Mrs Bouwer for sulphonylureas proved negative. The Crown said that was because of the lapse of time before the test was conducted.
Mrs Bouwer returned home on 25 November. She had been given a glucometer so that she could monitor her blood sugar levels. On 27 November Dr Bouwer obtained more sulphonylurea drugs. Annette Bouwer suffered another coma on 29 November and was again admitted to hospital. Her blood sugar levels were restored by treatment but the doctors suspected that she was suffering from an insulinoma – a tumour of the beta cells of the pancreas which causes excess insulin to be produced and can bring about a hypoglycaemic condition in a non-diabetic person. Mrs Bouwer was not diabetic. (The function of insulin is to control the body’s production of glucose. The higher the level of insulin in the body, the lower the blood sugar level is likely to be.)
Mrs Bouwer remained in hospital but continued to experience episodes of low blood sugar levels. On 13 December 1999 she was operated on and part of her pancreas was removed. No insulinoma was found. Until 22 December there were no further episodes of hypoglycaemia but on that date there was a low reading and symptoms of tingling around the mouth. After glucose drinks were taken her blood sugar level rose again. A fasting test was conducted for 36 hours and no hypoglycaemia occurred.
On 24 December Mrs Bouwer returned home with instructions that she be brought to the Emergency Department of the hospital if there was any further hypoglycaemic episode. No glucometer readings were taken on the next three days.
Dr Bouwer obtained more sulphonylurea drugs using false prescriptions on 28, 30 and 31 December and 2, 3 and 4 January 2000 and also some sedatives on 31 December. On 4 January he obtained a 10ml vial of insulin.
Low blood sugar levels were measured by glucometer on 3 and 4 January. Dr Bouwer arranged for his wife’s blood to be tested on 4 January, taking samples to the hospital for that purpose. The tests showed a low blood sugar level and he was so advised. He did not bring his wife to the hospital. But he did make a telephone call to Mrs Bouwer’s mother in South Africa during which he told her that Mrs Bouwer was close to death. She was found dead at 6.15am on 5 January. The evidence suggested that in the last two days of her life she would have been extremely unwell, vomiting and unconscious.After Dr Bouwer learned that the circumstances of her death were being investigated he sent emails to several overseas experts posing hypothetical questions about how long it would take for the presence of sulphonylurea drugs to disappear from the body/blood of a 47 year old woman. (Mrs Bouwer was 47.)
Post-mortem tests revealed the presence of sulphonylurea drugs in Mrs Bouwer’s blood in amounts sufficient to have caused her death. When confronted with the false prescriptions Dr Bouwer claimed that he had been suffering from depression and had stockpiled the drugs with a view to committing suicide with them. He said he had thrown away the vial of insulin.
At trial the Crown said that Dr Bouwer intentionally caused his wife’s death by administering sulphonylurea drugs, sedating her for this purpose. The defence case was that she was actually suffering from a rare and almost undetectable condition known as beta cell hyperplasia which has biochemical and physical features undistinguishable from an insulinoma, in particular causing production of excess insulin and hypoglycaemia; and that, depressed by her undetected illness, she took her own life using her husband’s cache of drugs to which she had somehow obtained access.
In support of the proposition that Mrs Bouwer was suffering from undiagnosed beta cell hyperplasia the defence called Vincent Marks, Professor of Clinical Biochemistry at the University of Surrey. He is also a consultant in chemical pathology and a doctor of medicine. His brief of evidence, which was read at the trial and which the jury had before them, contained the following summary and conclusions:
The evidence I have seen leads me to conclude that Mrs Bouwer was, on each of the two occasions on which she was admitted to hospital in November/December 1999, suffering from endogenous pancreatogenic hyperinsulinaemic hypoglycaemia [beta cell hyperplasia]. The exact cause is, however, impossible to determine on the information available to me but was probably due to a functional abnormality of pancreatic islet function – not necessarily identifiable by microscopical pathological anatomy. The hypoglycaemia observed prior to and during her two hospital admissions was probably secondary to primary malfunction of the “endocrine pancreas” possibly but unlikely to have been due to drugs.
It is impossible to state with certainty the cause of her death. It was undoubtedly associated with, and possibly a consequence of, the ingestion of several prescription medicines one of which, metformin, appears to have been taken in large quantities. The drugs that were detected at autopsy do not, in my opinion, adequately explain all of the morbid anatomical pathology, most notably B-cell hyperplasia, that was found.
He also said:
It is equally inappropriate for me to discuss the coincidence of a patient with endogenous pancreatogenic hyperinsulinism being found dead with drugs in her body that are themselves capable of producing hypoglycaemia. I can quite understand the temptation to attribute the hypoglycaemia from which Mrs Bouwer’s suffered in life to one or other of the hypoglycaemia producing drugs, especially in the absence of a demonstrable collection of cells meeting the description of an insulinoma. I can, however, see no reason to change my own opinion – which was also held by her medical attendants up to that time the toxicology results became available – that she was the victim of an acute onset of non-insulinoma pancreatogenic hypoglycaemia.
The grounds of appeal against conviction are:
[a]That the questioning of the expert witnesses by the Judge had the appearance of being designed to assist the Crown in establishing its case;
[b]That his questioning of Professor Marks appeared designed to undermine his expert opinion and also assisted the Crown by introducing a new theory of the cumulative effect of drugs administered by Dr Bouwer upon the underlying illness described by Professor Marks.
[c]That the criticism made of Professor Marks and other comments on the defence case made by the Judge in his summing up undermined the credibility of the witness and the defence case generally so that the summing up was unbalanced; and
[d]That the Judge failed to put the defence case adequately, in particular by not directing the jury that before it could convict it had to be satisfied beyond reasonable doubt that there was a method by which Dr Bouwer could have administered the necessary quantity of drugs to his wife.
Essentially the argument made for the appellant is that the Judge appears to have taken a view that Dr Bouwer was guilty and by his questions and his attitude in the summing up has effectively ensured that the jury would arrive at the same view, thereby usurping the function of the jury.

Questioning by the Judge

Mr More, for the appellant, directed the Court’s attention to a selection of the Judge’s questions to expert witnesses which he said were “adversarial” rather than fulfilling the proper function of clarifying issues for the jury. Particular objection was taken to questions which effectively summarised what the witness had been saying and, it was submitted, did so in a way which produced answers favourable to the prosecution.
Our own examination of the passages which have been criticised by counsel does not lead us to conclude, however, that the Judge was doing more than ensuring that the jury, in a case where the medical evidence was necessarily quite complex, was able to identify and understand the truly relevant issues. As we have said, the Crown case was strong. It naturally tended to follow that the answers to the important questions were unfavourable to the appellant. But provided the Judge, as he did, approached the questioning of witnesses in a neutral way there was nothing improper or having the appearance of bias if the questioning, for that reason, had such an effect. It would in fact have been wrong for the Judge to fail to ensure that the jury were guided in this way to focus on the real issues and were not distracted by collateral matters of little ultimate importance or confused by the volume of technical information.
The Judge adopted at times the method of asking questions which had the witness confirm a summary of the gist of his evidence. With the exception of perhaps a couple of questions, which were hardly material in a six week trial, no legitimate concern could be raised about the Judge’s questioning of the experts. Nor can it be said that he frequently and inappropriately interrupted the flow of the evidence and thereby took over the function of the prosecutor or disrupted defence counsel in cross-examination.
Mr More referred us to an instance in which the Judge asked a question during cross-examination of Dr Begg, a clinical pharmocologist, who had given evidence for the Crown about the likely effect of drugs found in the pre and post mortem samples. The question followed a complicated passage of cross-examination about the half-life in the body of the drugs. The Judge, in a single question, asked the witness if “the net result” was that if a particular quantity – a large dose – had been administered on 19 November (just before the first hospitalisation) and blood were taken on 21 November there would still be a negative screening test. The answer given by Dr Begg, at some length, was generally affirmative. The complaint is that the defence was challenging this theory. But the jury first needed to understand the conclusion the witness had drawn and in respect of which the defence took a different view. There is no appearance of partisanship or of the Judge descending into the arena in this exchange, nor in any of the other instances mentioned by Mr More.
We take another example. The Judge was also said to have assisted the Crown by referring to the low blood sugar level reading on 22 December as a “rogue” reading when questioning one of the hospital doctors. It helped the Crown if it could be shown that this result, at a time when Dr Bouwer would have had difficulty administering drugs to his wife because she was in hospital, were shown to be unreliable. But the Judge was obviously simply picking up on the fact that the witness had expressed the view that the reading might be inaccurate. There is no appearance that the Judge himself so regarded it. Indeed, he then specifically asked the witness if he had treated it as a rogue result rather than a reliable one. Again, the jury needed to be clear about the opinion on this critical reading which had been formed by the witness.
Having looked at the passages of evidence listed by counsel in the schedule to his written submissions, we have no doubt that the Judge’s questioning of witnesses was proper and that he did not exceed his role. There is nothing in any way approaching the unfortunate judicial interventions in R v Loumoli [1995] 2 NZLR 656 or R v Fotu [1995] 3 NZLR 129.

Questioning of Professor Marks

This ground relates entirely to the following exchange between the Judge and Professor Marks which took place at the conclusion of his cross-examination by Crown counsel:
q. Professor, I am going to refer to your diagnosis as hyperplasia for convenience? Yes. q. You have used the phrase to Mr Bates that that is a tentative diagnosis on your part, can you give us another word for tentative so we can understand what you mean? A provisional diagnosis which means that it’s a working hypothesis and one needs to use sophisticated lab. procedures to go from there.
q. I assume for the purpose of my question that despite the challenge that Mr Bates has made to that diagnosis if we assume that it happens to be right would the administration of Sulphonylurea drugs on top of the disease have a cumulative effect? I am quite sure it would make it infinitely worse. We know that because we used to use a Tolbutamide tolerance test. Patients with this sort of abnormality responded very badly to Tolbutamide. q. Look then at page 3 of your evidence [set out at para [11] of this judgment] I take it what you have just said that Sulphonylureas on top of the disease would make it infinitely worse accounts for the second sentence in the concluding para under Summary and conclusions although you are uncertain as to the cause of death (reads)? There was no doubt that those drugs were in her body when she died and even if they weren’t the only cause they would have been enough to hasten her death.
It is said that this exchange introduced for the first time an alternative theory of the administration of sulphonylurea drugs on top of an underlying disease and was “clearly adversarial”. In our view there is nothing in this criticism. Professor Marks had in his evidence-in-chief largely avoided the subject of the coincidental presence in the deceased’s body of sulphonylurea drugs. All the experts agreed that they were present in large quantity. Therefore the situation being considered by the jury was one in which, if they accepted the evidence of Professor Marks, there was both an effect from the beta cell hyperplasia and an effect from the drugs. It was perfectly proper for the Judge to ask the witness about the combined effect. Frankly, it was an obvious point which could well have occurred to jury members and which therefore needed to be addressed. The Judge had waited until the end of the cross-examination and, seeing that the matter had not been raised with Professor Marks by the prosecutor, had very appropriately questioned the witness about it in a neutral way.

The Judge’s criticisms in the summing up

In his summing up the Judge spent some time reminding the jury of the evidence of Professor Marks – some 14 paragraphs over more than five pages in the printed version. He described the opinion expressed by Professor Marks and went through some of the exchanges in the cross-examination of the witness. He then mentioned that Mr More had told the jury that Professor Marks was a world authority and had suggested to them in his closing address that the professor was unshaken in his evidence and that the only way in which he had amended his opinion was to accept that what was found in Mrs Bouwer’s case was consistent with drugs, although he still thought that was an unlikely explanation and preferred his opinion of an underlying illness. The Judge then pointed out to the jury that they had to appreciate the focus of Professor Marks’ evidence. The witness had not been talking of the cause of death. He had said at one stage that he had no idea what caused her death. He had in fact agreed with the other experts that as at the time of death the amount of the drugs in Mrs Bouwer’s body was such that it was very likely that she would be severely hypoglycaemic. The summing up then continued:
What Professor Marks was suggesting was a situation where, by chance, Annette Bouwer therefore had an underlying disease and at the same time, on 4 and 5 January at least, was affected by the administration of sulphonylurea drugs. In short, that both drugs and a natural disease, by chance, happened to be at play at the same time. In relation to that, when asked, he agreed readily that the two would be “cumulative” or, as he put it, that the drugs would make the underlying disease, if there was one, “infinitely worse”.
With reference to the cause of death, in his prepared statement at page 3, very early on in the evidence which he read, he said it was impossible he thought to state with certainty what the cause of death was and went on to say this and again I quote: “It was undoubtedly associated and possibly a consequence of several prescription medicines of which one, Metformin, appears to have been taken in large quantities”. So although he had earlier in his oral evidence had no idea what caused her death, as you will see in his brief he did express that view “undoubtedly associated and possibly a consequence of” the drugs which were in her system.
Just to recap, the focus of his evidence was whether there was this underlying disease. He was not doubting the significance of the drugs which were found in her body, that they could cause her to become severely hypoglycaemic. Indeed that they could have been associated with her death. I also think it is necessary that I draw attention to something he said at the end of his prepared evidence, his brief that was read. What he said was this: “It is inappropriate for me to discuss the coincidence of a patient (with NIPH) being found dead with drugs in her body themselves capable of producing hypoglycaemia”. Ladies and gentlemen, I suggest you will need to reflect upon what Professor Marks said in that respect. Was it inappropriate for an expert of his standing who has flown half way around the world, to say that he would not discuss the coincidence that Annette Bouwer had within her body this quantity of sulphonylurea drugs? Was it not, when you think about it, quite essential that he do so? If one is going to diagnose, even a tentative diagnosis of such a rare disease, surely one must confront the other evidence, including that there was both the availability of sulphonylurea drugs at all relevant times and, more crucially, that such drugs were found in the person’s body before and after their death. That I would have thought was an essential part of the picture, an essential part of the evidence and had to be brought to bear.
Perhaps I am being unfair to Professor Marks because, of course, he did describe NIPH as what he termed a “tentative diagnosis” and when I asked him to explain what that was, he said: “it was a working hypothesis which required sophisticated laboratory procedures to go from there”. So that I suggest is an overview of what Professor Marks said.
The Crown response was, well there was no underlying disease. There was no cell dysfunction or hyperplasia and in order to establish that it relied on a number of experts of its own. That does not mean that the Crown’s view is right. You should never proceed on the basis it is four against one, or whatever the score is. It is the quality of the evidence not its quantity which counts and there is no denying that Professor Marks was, as Mr More has urged, a world expert.

In his submissions to this Court Mr More described the criticism made of the professor in the third of the quoted paragraphs as “trenchant”, suggesting that its purpose could be to undermine the credibility of the witness and that it had been wrong for the Judge to leave the jury with the impression that the professor had not dealt with the issue of the drugs. Mr More pointed out that this concern was linked to the questions which the Judge had asked of the witness.
There is no doubt that the Judge was indicating to the jury his disapproval of what he saw as the failure of the witness to put his theory concerning the rare disease of beta cell hyperplasia into the full context of the death of Mrs Bouwer to which, undoubtedly, the presence in her body of sulphonylurea drugs must have been a substantial contributor, if not the sole cause. We think, however, that the criticism made by the Judge was, in the circumstances, a fair one. There had been an element of unreality in the approach taken by Professor Marks whose lengthy brief made very little mention of the prescription medicines and, in the extract which has been quoted in para [12] above, had suggested that it was “inappropriate” for him to discuss the coincidence of the illness and the drugs. In addition, in that passage he had described Mrs Bouwer as the “victim” of the disease which might possibly have suggested to the jury that he thought it was the disease alone which had killed her.
It might have been better if the Judge had not placed quite the emphasis which he did – by twice using the expression “by chance” in the first of the quoted paragraphs – on the element of coincidence; but in the last two paragraphs, after making his criticism, he did, we think, sufficiently redress the balance by indicating to the jury that perhaps he was being unfair to the witness and by emphasising again, in the context of the need to look at the quality of the expert evidence rather than its quantity, that Professor Marks was indeed a world expert.
There are other portions of the necessarily lengthy summing up in which the Judge appears to indicate a view unfavourable to the defence concerning particular factual aspects of the case. He had, however, at the outset of the summing up given the jury the usual direction, strongly worded, that the facts were exclusively its domain. And on each occasion when a criticism was made, it was done in a way which would have reminded the jury of that direction. A Judge is entitled to express an opinion on factual matters and when that opinion is unfavourable to the defence that fact alone does not render the summing up unfair if it is also made clear to the jury that questions of fact are entirely their responsibility, which the Judge did in this case. An appellate Court will of course interfere if it considers that the comments made by the trial Judge are stronger than the facts of the case warrant (R v Daly (1989) 4 CRNZ 628, 629-30) but we do not take that view of the totality of the Judge’s remarks in the present case. We are satisfied that, on a reading of the whole of the summing up, it was not unbalanced. On the basis of the evidence it was overall a fair presentation of the case. It happened to demonstrate that there was a great weight of evidence against the accused. But that was because of the strength of the Crown case and the comparative weakness of the defence, not because of the way in which the Judge approached the summing up.

Failure to put defence case

It was submitted that the Judge did not deal adequately with the argument for the defence that the Crown had failed to demonstrate that there was a method by which Dr Bouwer could have administered the necessary quantity of drugs to his wife. The point which the defence was trying to make was that a very large number of pills was required to produce the quantity of blood sugar lowering drugs found in Mrs Bouwer’s body and that it would have been difficult for anyone to have forced her to take them, particularly when some of the pills (metformin) were quite large and had a most unpleasant taste. On the other hand, if she had been intending to commit suicide she could have administered the pills to herself and taken them in a way which minimised the taste. This was said on behalf of Dr Bouwer to have been the more likely cause of the finding of the drugs in her body.
An examination of the summing up shows that, far from the Judge having omitted to deal properly with this defence argument, he in fact referred to it, directly or indirectly, on several occasions. He did so, quite correctly, in the course of summarising the submissions which had been made to the jury by Mr More. At one point the Judge reminded the jury of the question: how could Dr Bouwer have caused Annette, an independent, intelligent woman, to have taken drugs in these quantities without her being aware of it? He told the jury that counsel had said that the case called out for another interpretation and that was plainly that this was suicide; that self administration by Annette could not be excluded beyond reasonable doubt.
And very close to the end of the summing up the Judge referred to Mr More’s raising of “the fundamental issue of murder or suicide” and the question which counsel had asked concerning how Dr Bouwer could have administered the quantity of drugs required – holding up to the jury the bag – and how could he have administered metformin which, as the jury had been told, had a foul taste? Whereas if she had been intent upon suicide, she would simply have taken the drugs, with quantity and taste not being an issue.
The point, although important to the defence, was a simple one. There can be no proper criticism of the Judge for the way in which he put it before the jury who would have been quite clear that they could not find the accused guilty if there was a reasonable possibility that Mrs Bouwer took the drugs herself.

Conviction appeal – result

There being no real substance in the criticisms made of the Judge and certainly no appearance of bias on his part, there is no merit in any of the grounds of the appeal against conviction, and it is accordingly dismissed.

Sentence appeal

On behalf of the Solicitor-General, Mr France submitted that a minimum period of imprisonment of 13 years was insufficient to reflect appropriately society’s denunciation of this crime. He referred to the extended period over which Dr Bouwer in effect “renewed his commitment” to kill his wife and, accordingly, the period over which she suffered. It was accepted that suffering was at varying levels but counsel said that it plainly reached its zenith with the operation and then in the period immediately prior to death. At other times, however, there was not only physical suffering but also the need for Mrs Bouwer to cope mentally and emotionally with increasing unwellness in circumstances where the reasons could not be ascertained.
Counsel said that there had been considerable planning, which included creating a façade of general illness, the obtaining of the drugs and letting people believe that Mrs Bouwer was mentally unstable (which would support a defence that she had committed suicide). Dr Bouwer had even administered the drugs when she was in hospital and had constantly distracted the medical team from the real reason for her illness. Dr Bouwer had induced or allowed the medical team to carry out a totally unnecessary six hour operation on his wife. Various measures were also taken by him after the death to avoid detection. Counsel submitted that a proper minimum period of imprisonment for a crime of this seriousness could not be less than 15 years.
In response, Mrs Stevens attempted to distinguish previous cases, none of which, it must be accepted, is at all similar to the present one. She pointed out that the Judge had presided over the trial and heard all the evidence and was in the best position to determine Dr Bouwer’s relative culpability. It had not been suggested that the Judge had failed to take account of any relevant matter, including those mentioned by counsel for the Solicitor-General. Mrs Stevens also submitted that it has only been in an exceptional case that this Court has interfered with a minimum term set by the High Court under s80.
Although the offending was obviously very serious, counsel submitted, it did not involve inflicting upon the victim the terror or apprehension of being killed since she was quite unaware of what was happening to her.
Murder by slow poisoning is amongst the most despicable of crimes. That it should be done by a doctor – by someone who has taken the Hippocratic Oath – to anyone, let alone his wife, is even worse. In this case the doctor has also deceived his medical colleagues and so caused his wife to have to undergo a serious and lengthy operation. And then he recommenced his attempts to kill her, again using drugs which he had abused his position as a medical practitioner in order to obtain. In addition to the killing and its particularly evil method, which caused his victim anxiety, pain and suffering over an extended period, there were these multiple abuses of trust and power.
This was a crime of murder so serious as to justify a minimum period of very substantially more than 10 years. In our view the 13 year term which has been imposed was insufficient to denounce and punish it. It is therefore a case in which this Court should intervene notwithstanding our caution about overruling the experienced Judge who presided at the trial. We bear in mind, however, that s80(3) requires that the duration of the period imposed shall be “the minimum period that the court considers to be justified having regard to the circumstances of the case, including those of the offender”. We accept the submission for the Crown that such minimum period ought to have been 15 years, at the very least.
Accordingly we grant leave to the Solicitor-General to appeal, quash the sentence imposed in the High Court and order that Dr Bouwer must serve a minimum period of imprisonment of 15 years. The mandatory sentence of life imprisonment necessarily remains.

Solicitors:

Crown Law Office, Wellington

[2002] NZCA 146

24 June 2002