R v Haines [2016] NSWSC 1824

Supreme Court New South Wales

Medium Neutral Citation: R v Haines [2016] NSWSC 1824 Hearing dates: 12 October 2016 Date of orders: 12 October 2016 Decision date: 12 October 2016 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Permit the evidence to be led but in the edited form proffered by the Crown prosecutor at pp 26 and 27 of the transcript of 11 October 2016 Catchwords: EVIDENCE – application to exclude evidence on basis of unfair prejudice – Evidence Act 1995, s 137 – where evidence is of a conversation in which the accused explained how to commit the "perfect murder" – whether probative value of the evidence is outweighed by the danger of unfair prejudice to the accused – whether evidence can be edited to minimise the danger of unfair prejudice Legislation Cited: Evidence Act 1995 Cases Cited: Not applicable Texts Cited: Not applicable Category: Procedural and other rulings Parties: The Crown Megan Jean Haines (Accused) Representation: Counsel: B Campbell (Crown) T Edwards (Accused)

Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2014/197832 Publication restriction: Not Applicable

Judgment (ex tempore) 1. Prior to the empanelment of the jury, the Court has been asked to give a ruling about the admissibility of evidence which the Crown intends to lead from a witness, whose name has been suppressed ("the witness"). Objection is taken to the proposed evidence by counsel for the accused, upon the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. The objection is based on s 137 of the Evidence Act 1995. 2. The accused is charged with two counts of murder. The Crown case is that she murdered two women, Ms Isabella Spencer and Ms Marie Darragh, by injecting them with insulin during the night shift of 9 to 10 May 2014. The Crown alleges that at the time of the offences the accused was employed as a registered nurse at the St Andrews Aged Care facility at Ballina in New South Wales. Ms Spencer and Ms Darragh were residents at St Andrews and the accused was, on the evening in question, the only registered nurse on duty and she was the person, according to the Crown, who was solely responsible for the administration of medication for the entire facility. 3. It is the Crown case that there was no legitimate medical reason for either of the two deceased to be administered with insulin. 4. The disputed evidence is set out in paragraph 15 of the statement of the witness dated 19 August 2014, which is marked Exhibit PA3 in this pre-trial argument. 5. Counsel for the accused has indicated that the cause of death of each deceased, determined by the forensic pathologist as being insulin administration, is not in dispute. Equally, as I understand it, it will not be in dispute that the post mortem examination did not identify any specific injection site on either of the deceased. 6. A general description of the evidence which is in dispute is this. A conversation is said to have occurred between the accused and the witness in mid-2009 in the context of the two of them watching television, in particular a show such as CSI or something similar. It is said that the plot of the show involved a murder victim being poisoned or injected with something that led to their death. It is said that the story line in the show included the fact that police detectives were able to solve the crime and apprehend the perpetrator because they were able to detect the toxin or poison. 7. The evidence which the Crown anticipates will be given is as follows: "Towards the end or immediately after the show [the accused] got up to go and make a cup of tea. The accused said, in reference to the TV show, 'They are all stupid'. Her partner said, 'Why? What do you mean?'. The accused said, 'I know how to commit the perfect murder'. Her partner said, 'What? There is no such thing as the perfect murder'. The accused said, 'It's easy'. Her partner said, 'What? How? How would you do it?'. Megan said, 'Insulin. Inject them with insulin'. Her partner said, 'Why? How is that a perfect murder?'. The accused said, 'Because the body continues to metabolise the insulin so it looks like natural causes'. Her partner said, 'But what about the injection mark?'. The accused said, 'If you are good at injections it won't leave a mark. Besides, they won't even be looking'." 1. The witness assumed that what he had just been told was common knowledge in nursing. It did not cause him any concern. He did not take it seriously, because he assumed that the accused was just talking and showing him her medical knowledge. 2. Counsel for the accused has submitted that the evidence, if led, would have little or no probative weight or value because the factual context of the television show is unrevealed by the evidence, and differs from the factual context of the charges against the accused, being a nursing home where medical and nursing staff are available or else can be summoned immediately to help any of the residents, should help be sought. As well, counsel puts that, according to the expert evidence which is anticipated to be led, a routine practice in a nursing home is that if a person is unexpectedly found in a comatose state, one of the first steps which would be taken is that the person's blood glucose level would be checked, which would reveal the presence of insulin, prior to its degrading and being unable to be detected. 3. Counsel submits, in accordance with the authorities, that the real risk and danger of unfair prejudice in this case is that the jury may adopt an illegitimate form of reasoning or give the evidence undue weight. Counsel draws attention to the absence of the context of the television show, as I have said, and the likely different context of the circumstances in which the Crown allege these crimes were committed. He submits that the jury would be left to speculate that the accused believed the injection of insulin would be the perfect murder, regardless of context. 4. The Crown submits that the evidence has significant probative value because it demonstrates that the accused knew that: death could be occasioned by the injection of insulin in circumstances where it was not prescribed or needed; death by the injection of insulin would appear to mimic death by natural causes; and no mark would be left by an injection if the person undertaking the injection was competent. As well, the Crown submits that the conversation shows that the accused believed that a death caused in that way would not be detectable. 5. I should note that in the course of submissions both counsel accepted that the rational interpretation to be placed on the words "perfect murder" was a killing which was either undetectable or unlikely to be detected. 6. I am satisfied that the conversation, if admitted, would have significant probative value for the Crown case. I accept the Crown's submission that if the jury accepted the terms of the conversation, it would demonstrate the accused's knowledge, understanding and belief of the matters to which the Crown draws attention. The real issue, it seems to me, is whether there is any danger of unfair prejudice to the accused and whether that danger outweighs the probative value of the evidence. 7. It is beyond doubt that the evidence is prejudicial to the accused. However, that is not the relevant test. The relevant test is whether the prejudice to the accused is unfair. In determining that question, the authorities require me to consider whether the editing of the evidence would alleviate some of the danger of unfair prejudice or whether if the evidence could be dealt with, for example, by way of a formal admission by the accused, the danger of unfair prejudice would be removed. I accept the submissions of counsel for the accused that if the conversation in its present form, and in particular including the words "perfect murder", were admitted, there is a danger of unfair prejudice. Accordingly, I need to consider, before deciding ultimately on the admissibility of the conversation, an alternative means by which the conversation could be framed, edited or otherwise dealt with. 8. The accused, by her counsel, indicated a number of admissions that she was prepared to make. The Crown submitted that those admissions would not be adequate to cover all of the matters which the Crown intended to prove by the evidence. I agree that, whilst the admissions go a considerable distance to meeting the issues sought to be proved by the Crown, they do not attend to all of those issues. In making that finding, I expressly say that I am not at all critical of the accused for the terms of the admissions which counsel indicated she would be prepared to make. 9. The Crown prosecutor submitted that it would be possible for the Crown to edit the conversation in a way which removed the words "perfect murder" and substituted for those words a different phrase, such as words to the effect, "undetected killing" or words to that effect adjusted to reflect the terms used in the conversation. The Crown prosecutor indicated that he would lead the conversation using those words so that any risk of the term "perfect murder" being volunteered by the witness would be minimised. 10. I am satisfied that if, what I might call for shorthand purposes, the edited version of the conversation is put before the jury, any danger of unfair prejudice arising by reason of the differential contexts of the television show and the events which took place can be addressed both by submissions from counsel and by direction from the Bench. In that circumstance, even though there is some danger of unfair prejudice by the admission of this conversation, in my view that danger does not outweigh the probative value of the evidence. In fact, in my view, with the editing which is proposed and the directions which can be given, the danger of unfair prejudice to the accused is minimal. 11. Accordingly, I will permit the evidence to be led but in the edited form proffered by the Crown prosecutor at pp 26 and 27 of the transcript of 11 October 2016.