SYM -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 96
[2026] WASCA 96
Page 1
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION : SYM -v- THE STATE OF WESTERN AUSTRALIA
[2026] WASCA 96
CORAM : VAUGHAN JA
HALL JA
DAVID AJA
HEARD : 11 NOVEMBER 2025
DELIVERED : 30 JUNE 2026
FILE NO/S : CACR 83 of 2024
BETWEEN : WENDY RUTH SYM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S : CACR 84 of 2024
BETWEEN : WENDY RUTH SYM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
-- 1 of 36 --
[2026] WASCA 96
Page 2
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : FORRESTER J
File Number : INS 5 of 2023
Catchwords:
CACR 83 of 2024
Criminal appeal - Appeal against conviction - Attempted murder - Whether
primary judge erred by failing to warn the jury as to the forensic disadvantages
suffered by the appellant by reason of the deficient police investigation -
Whether judicial warning was required to avoid a perceptible risk of a
miscarriage of justice - Appeal dismissed
CACR 84 of 2024
Criminal appeal - Appeal against sentence - Attempted murder - Whether
sentence of 9 years' imprisonment is manifestly excessive - Whether sentence
imposed is unreasonable or plainly unjust - Appeal allowed - Appellant
resentenced
Legislation:
Criminal Code (WA), s 283
Result:
CACR 83 of 2024
Leave to appeal conviction granted
Conviction appeal refused
CACR 84 of 2024
Leave to appeal sentence granted
Sentence appeal allowed
-- 2 of 36 --
[2026] WASCA 96
Page 3
Representation:
CACR 83 of 2024
Counsel:
Appellant : D Grace KC
Respondent : K C Cook & N R Sinton
Solicitors:
Appellant : David Manera
Respondent : Director of Public Prosecutions (WA)
CACR 84 of 2024
Counsel:
Appellant : D Grace KC
Respondent : K C Cook & N R Sinton
Solicitors:
Appellant : David Manera
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in decision(s):
Ammoun v The State of Western Australia [2009] WASCA 182
Austin v The State of Western Australia [2023] WASCA 191
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
DWM v The State of Western Australia [No 2] [2019] WASCA 143
Eravelly v The State of Western Australia [2018] WASCA 139
Garlett v The State of Western Australia [2009] WASCA 44
House v The King [1936] HCA 40; (1936) 55 CLR 499
Huggins v The State of Western Australia [2018] WASCA 61
IAB v The State of Western Australia [2015] WASCA 238
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Mansfield v State of Western Australia [2017] WASCA 178; (2017) 52
WAR 233
-- 3 of 36 --
[2026] WASCA 96
Page 4
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
MLS v The State of Western Australia [2018] WASCA 56
R v GW [2016] HCA 6; (2016) 258 CLR 108
The Queen v Morse (1979) 23 SASR 98
The State of Western Australia v Hillier [2008] WASCA 184
The State of Western Australia v Phillips [2023] WASCA 104
The State of Western Australia v Radovic [2020] WASCA 46; (2020) 282
A Crim R 233
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
-- 4 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 5
JUDGMENT OF THE COURT:
1 Following a trial by jury in the Supreme Court of Western
Australia, the appellant was found guilty of the offence of attempting to
unlawfully kill Kenneth William Sym at Joondalup on 15 January
2021.
2 The appellant had been married to Kenneth Sym for 38 years at
the time of the alleged offence. Mr Sym was suffering from vascular
dementia and type 2 diabetes and had been admitted to the Joondalup
Health Campus (JHC) on 14 January 2021.
3 There was no dispute at trial that a non-therapeutic dose of
exogenous insulin had been administered to Mr Sym on 15 January
2021. The central issue at trial was identity; and, more specifically,
whether the prosecution had proved beyond reasonable doubt that the
appellant administered the insulin, and if so, whether the prosecution
had proved the appellant administered the insulin with an intention to
kill her husband.
4 The appellant appeals her conviction on the sole ground that the
primary judge made a wrong decision on a question of law, or
alternatively, occasioned a miscarriage of justice, by failing to warn the
jury that the appellant had been forensically disadvantaged by the
'mistakes, error and delays' that occurred during the police
investigation.
5 The appellant was sentenced to 9 years' imprisonment with
eligibility for parole to commence on 22 July 2024.
6 The appellant also appeals her sentence on the sole ground that it
was manifestly excessive.
7 For the reasons which follow, we would grant leave to appeal in
relation to the conviction but dismiss the appeal.
8 We would grant leave to appeal in relation to the sentence and
allow the appeal. We would set aside the sentence, and re-sentence the
appellant to imprisonment for 6 years 6 months' imprisonment with
eligibility for parole. We would order that the sentence commence on
8 March 2024.
-- 5 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 6
The State case
9 The prosecution case was a circumstantial one which relied on
the appellant having the opportunity, knowledge and motive to commit
the offence. There was also DNA evidence which linked the appellant
to a vial of Actrapid insulin located in a nearby public bathroom. This
type of insulin was not then used at the JHC but was a type of insulin to
which the appellant had had access in her employment as a nurse. In
summary, the State case relied on the following bodies of evidence.
Opportunity
10 There was unchallenged evidence that Mr Sym had been
administered with exogenous insulin on 15 January 2021 and that
without medical intervention he would have died from untreated
hypoglycaemia. Mr Sym was moved to the medical assessment unit at
the JHC at about 1.20 pm on 15 January 2021. The appellant was
present in Room 3B with Mr Sym (and another elderly patient)
from 1.20 pm to 1.40 pm. The appellant left the hospital at 1.45 pm.
11 Ms Bhavneet Kaur was a nursing assistant assigned as a joint
carer to both patients in Room 3B. The police investigators did not
obtain a statement from her until about one week before the trial. Due
to the passage of time between 15 January 2021 and when Ms Kaur
was ultimately spoken to by police in March 2024, she was unable to
state exactly what she did on that day. However, Ms Kaur said that it
was her usual practice to give family members some privacy when
visiting with loved ones whilst remaining close by.
12 There was also evidence from a student nurse, Ms Anna Jamola,
that she was asked to perform an ECG on Mr Sym and recorded a note
to that effect at 1.50 pm. Ms Jamola also gave evidence that the
appellant told her to limit observations on Mr Sym, before leaving the
hospital at 1.45 pm on 15 January 2021.
13 There was toxicology evidence from Dr Jessamine Soderstrom
that exogenous insulin was administered to Mr Sym between 1.25 pm
and 1.40 pm, allowing for a window of about 15 minutes during which
the insulin could have been administered to Mr Sym by the appellant
while she was visiting him in Room 3B from about 1.25 pm, and before
she left the hospital for the first time at 1.45 pm.
-- 6 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 7
The evidence linking the appellant to the vial of insulin
14 When the appellant returned to the hospital at 4.45 pm, she was
observed by one of the nurses, Ms Kerrie Key, to ask for directions to a
public bathroom and then walk in that direction. Ms Key said the
appellant was walking with both her hands in her pockets. After the
appellant was observed leaving the bathroom, Ms Key went into the
bathroom and found an Actrapid vial insulin in the bin underneath
some paper towelling and inside two paper cups. Ms Key retrieved the
vial and placed it in a specimen bag.
15 Ms Key later returned to Room 3B and looked inside the sharps
container in Mr Sym's room and observed there was an orange capped
syringe inside the container. This type of syringe was not used on the
ward where Room 3B was situated, and the staff at JHC were trained
not to recap syringes after use.
16 The vial had an expiry date of October 2018, and it had a
handwritten notation 090418 indicating it had been opened for use on
9 April 2018.
17 Mr Brendan Burns, the Deputy Director for Clinical Services at
JHC, collected the bag in which Ms Key placed the Actrapid vial.
Mr Burns noted that the vial was empty, expired and was of a type not
then used at the JHC. Mr Burns also gave evidence that insulin vials
are discarded 28 days after they are opened, regardless of the expiration
date on the vial. As of 15 January 2021, the Actrapid vial located by
Ms Key was 2 years and 3 months past its expiry date.
18 The expiry date on pharmaceutical insulin such as Actrapid
insulin indicates the date by which a manufacturer can guarantee the
activity of the insulin. While the insulin remains active after the
expiration date, its efficacy is reduced over time. The timing of the
onset of symptoms from an expired dose of insulin is less clear than
when an unexpired dose of insulin is administered to a patient.
Mr Sym did not exhibit any symptoms consistent with having been
administered a dose of insulin until about 3.30 pm when he appeared
sweaty. On the State case, the fact the insulin had expired explained
the absence of symptoms in the hours after the insulin was administered
during the relevant period from 1.25 pm to 1.40 pm on 15 January
2021.
19 The relevant vial of insulin was distributed by a company,
Symbion. There was evidence that of the 10-millilitre vials of Actrapid
-- 7 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 8
insulin distributed with the same expiry date as the vial located in the
bathroom, a total of 12 vials were provided to the Princess Margaret
Hospital (PMH) and a total of 15 vials were provided to the Perth
Children's Hospital (PCH) between 12 May 2017 and 24 July 2017.
There were also seven vials provided to the JHC pharmacy in
July 2017.
20 A mixed DNA profile was extracted from the exterior of the
insulin vial located in the public bathroom. The major contributor of
that DNA profile matched the appellant's DNA profile with a statistical
weighting that it was 100 billion times more likely that the appellant
was a contributor rather than the mixed DNA profile resulting from two
unknown individuals.
21 Mr Christopher Hopps, the Chief Pharmacist of the PCH, gave
evidence that vials of Actrapid insulin, like the one found on
15 January 2021, were stocked by PMH in 2017 and 2018. As a
schedule 4 drug, registers of insulin stock were not required to be
maintained by the hospital. As of April 2018, insulin vials would be
stored in the fridge in the drug room and were accessible by nurses.
Mr Hopps said that the 10-millilitre insulin Actrapid vials were stocked
in critical care areas which includes the intensive care, the emergency
department, the endocrinology ward and maybe one or two other
wards. He said that a handwritten notation on the relevant vial of
insulin is consistent with it being opened at 3.15 pm on 9 April 2018.
22 Mr Hopps also explained the relationship between PMH and the
PCH. PMH transitioned to the new PCH in June 2018 and was
officially decommissioned. There was a small period of overlap in
May 2018. As of 9 April 2018 PMH was still operational.
23 The appellant accepted in her evidence that she was working at
PMH as a senior nurse on a ward that included endocrinology on
9 April 2018 between 7.00 am and 3.50 pm. The appellant
acknowledged that insulin of the kind in the vials of Actrapid insulin
was stocked in the ward she was working in at PMH in April 2018.
The appellant had access to such vials of insulin. The appellant also
accepted that by reason of her occupation as a nurse she knew how to
inject insulin intravenously or via a patient's cannula.
24 In relation to the orange capped syringe located inside the sharps
container in Room 3B, there was a mixed DNA profile extracted from
the syringe. The major contributor matched the DNA profile of Senior
-- 8 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 9
Constable Baker. The State contended at trial that this was an incident
of secondary DNA transfer whereby Senior Constable Baker's DNA
was transferred accidently from the container lock pick key to the
contents.
Motive
25 The State relied on a series of text messages sent by the appellant
to various close friends and family from early October 2020 to
15 January 2021 wherein she discussed her husband's physical and
cognitive decline and expressed her stress, frustration and exhaustion at
caring for him.
The defence case
26 The defence case at trial was that the prosecution had not
established that the appellant administered the insulin to Mr Sym, her
husband, on 15 January 2021.
27 The appellant participated in two records of interview on
20 January 2021 and 19 October 2022. During those interviews, the
appellant denied having attempted to murder her husband. She denied
injecting him with insulin on 15 January 2021.
28 The appellant gave evidence in her own defence. She said as
follows:
(a) She denied having a motive to commit the offence. She stated
that on 14 January 2021 an ACAP assessment was conducted at
her house to assess Mr Sym's eligibility for government
subsidised assistance. He wanted to remain at home, and she
said that she also wanted him to stay at home. At the assessor's
suggestion an ambulance was called, and Mr Sym was admitted
to JHC on the same day.
(b) The appellant denied having ever turned her mind to killing her
husband and said that at no stage did she want him dead. The
appellant confirmed that caring for her husband was hard but
said it was not a burden. She gave explanations for various text
messages in which she expressed her frustration. She said that
after the ACAP assessment on 14 January 2021, she was
positive about their future because of assistance that was to be
provided.
-- 9 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 10
(c) The appellant denied ever being in possession of an Actrapid
vial. She agreed that she worked at PMH in April 2018 and
would have had access to that type of insulin, but she said that
she did not have any memory of seeing one or taking a vial of
Actrapid insulin from that hospital.
(d) The appellant said that whilst Mr Sym was in Room 3B, to her
knowledge a carer or nurse was with her husband at all times.
She said that at no time during the relevant period on
15 January 2021 was she alone with her husband in Room 3B.
She said that a nurse or carer was at the end of her husband's
bed. She denied giving her husband a dose of insulin through a
syringe.
(e) After leaving the hospital at 1.45 pm on 15 January 2021, she
went home and she then went to the Kingsway Shopping Centre
and bought pyjamas for Mr Sym. He required fresh clothes and
pyjamas for his hospital stay. She returned to the hospital with
the pants prior to knowing that anything had gone wrong with
Mr Sym and that there was an issue that required staff
assistance. Defence counsel submitted that this behaviour was
inconsistent with having administered a near fatal dose of
insulin.
(f) The appellant said she had no recollection of going to a
bathroom outside Mr Sym's room but conceded it may well
have happened. She denied at any stage depositing the Actrapid
vial into a bin in the public bathroom. She denied having the
vial in her possession when she returned to the hospital on the
afternoon of 15 January 2021. She specifically denied having a
vial of insulin in either pocket of her dress.
(g) In cross-examination, the appellant agreed that she had
experience administering injections including the use of a
subcutaneous syringe in the abdomen area. She maintained that
she had not told nursing staff to leave Mr Sym alone prior to
leaving the hospital at 1.45 pm on 15 January 2021. She denied
telling Ms Jamola to limit observations on Mr Sym. She denied
bringing back the vial of insulin to the hospital when she
returned at 4.49 pm on 15 January 2021 and that the reason she
brought it back was in case she needed to give Mr Sym an extra
dose. She denied that upon realising that there was a possibility
-- 10 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 11
her actions may be discovered she then disposed of the vial in
the bathroom.
(h) The appellant denied that based upon her love of her husband
she wanted to end his suffering. She denied that she was
attempting a mercy killing.
29 The defence case was that there was no opportunity for the
appellant to administer the insulin given the presence of nursing staff in
the room, and the late onset of his symptoms (which could not be
adequately explained by the expired insulin) after she had left the
hospital. Defence counsel also submitted that the appellant had had a
long and happy marriage with her husband and despite the pressures of
his illness, she had no motive to commit the offence. Indeed, it was put
that her actions in returning to the hospital with pyjama pants for him
were objectively inconsistent with her having done so.
30 Significantly for this appeal, defence counsel emphasised the
deficiencies in the police investigation and submitted that those
'mistakes, errors and delays' were such that a jury could not be satisfied
beyond reasonable doubt that the State had proved the circumstantial
case against the appellant.
31 Before turning to defence counsel's criticisms of the police
investigation relevant to this appeal, it is necessary to outline in greater
detail some of the evidence as to the purported deficiencies in the
police investigation.
The delay in taking statements from the nursing staff
32 As to the delay in taking statements from the nursing staff at the
JHC, the appellant criticises the police's failure to obtain a statement
from Ms Kaur until the week before trial, and from Ms Jamola until
August 2021, many months after the alleged offence.
33 Ms Kaur was employed as a carer by the JHC and, on 15 January
2021, she was assigned the care of Mr Sym and another elderly patient
in Room 3B. The police did not obtain a statement from Ms Kaur until
March 2024. By this stage, she had no memory of anything concerning
her work that day including whether she was looking after one or more
patients, or as to any entries on the relevant medical documents. She
agreed that the medical notes indicated that her shift commenced at
7.00 am and ended at 3.00 pm and that she was Mr Sym's carer during
that time.
-- 11 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 12
34 By reason of the passage of time, Ms Kaur could only give
evidence as to her usual practice. She said that if a family member
came into a room, her practice was to give the family member some
privacy with the patient, but even so, she would place herself in a
position where she could still observe what they were doing.
35 In cross-examination, Ms Kaur agreed that her role on
15 January 2021 was to keep a close eye on the patient under her care,
and to make regular observations of him, which she would note on the
medical records. She said that she was required to maintain her
observations of Mr Sym even if a family member was present. She
maintained that she had no recollection at all of Mr Sym, or of what she
did on that day.
36 Ms Anna Jamola was working at the JHC on 15 January 2021.
She recalled the appellant and Mr Sym. In her evidence in chief,
Ms Jamola said that the appellant approached her outside of Room 3B
before leaving the hospital and said that 'she and the patient had a very
sleepless night in ED, so they didn't have any good sleep at all'.
Ms Jamola said that the appellant requested there be 'little or no
observations done to the patient so that the patient can catch up on
sleep, otherwise he will have behavioural issues'. Ms Jamola told the
appellant that she would pass the information on to the afternoon
nurses.
37 Ms Jamola gave evidence that she performed an ECG on
Mr Sym, and when she did so there was another patient in the room, as
well as a female carer (presumably Ms Kaur). She said that Mr Sym
was sleepy and relaxed, but he could still respond. Ms Jamola recalled
that Mr Sym had a cannula inserted in his arm. In her evidence she was
referred to a document ('Peripheral Intravenous Cannula Record',
Exhibit 3) which noted that she had checked Mr Sym's canula at
1.50 pm.
38 In cross-examination, Ms Jamola agreed that as a student nurse,
she would have always been accompanied by a senior nurse.
Ms Jamola agreed that there were other medical notes (Exhibit 34)
which recorded that, in addition to performing an ECG, she also
completed other observations of Mr Sym by obtaining his saturation
levels, blood pressure, pulse and pain score; performing a falls risk
assessment; commencing a general medicine care plan; and
undertaking the malnutrition screening tool. Ms Jamola agreed that she
-- 12 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 13
would have conducted these tasks before she recorded the time
of 1.50 pm.
39 Ms Jamola was also referred to a record which indicated
Mr Sym's blood sugar level was taken at 1.40 pm. However, she said
this notation was not made by her and she has no independent
recollection of making this observation.
40 Ms Jamola agreed in re-examination that the notation by her of
1.50 pm would be the time she was conducting her observations of
Mr Sym.
41 As mentioned earlier, Ms Jamola agreed that the police did not
request a statement from her until August 2021, despite having access
to the medical records in the days after the incident. There was also
evidence that when taking her statement, the police did not provide her
with all the medical notes made by her to refresh her memory.
Other inadequacies in the police investigation
42 As to the police investigation, Detective Stephen Baker was
cross-examined as to other alleged failings in the investigation.
Detective Baker conceded that there were other distributors of Actrapid
to the JHC Pharmacy, in addition to the company Symbion, which were
not the subject of his investigations. He did not obtain records from the
JHC Pharmacy to ascertain whether any of the seven vials of Actrapid
insulin supplied to the pharmacy in 2017 were sold or provided to staff,
patients or visitors present at the ward at JHC on 15 January 2021 or
administered to a patient at PMH on 9 April 2018.
Counsels' addresses at trial
43 The prosecutor at trial acknowledged that Ms Kaur did not have
a specific recollection of the day, and that her evidence was confined to
accepting the medical records as to her movements that day and
explaining her usual practices. Given those limitations, the prosecutor
conceded that her evidence was of 'limited value' in establishing
opportunity. Or, in other words, while the records indicated she was
present in Room 3B during the relevant time period
of 1.25 pm - 1.40 pm, the State could not establish with any specificity
or certainty that there was a time within that period when Ms Kaur did
not have Mr Sym under her observation so as to allow for an
opportunity for the appellant to administer the insulin. In relation to the
-- 13 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 14
evidence of Ms Kaur and opportunity, the prosecutor's ultimate
submission was in the following terms:1
But ultimately, the evidence, members of the jury, is that Bhavneet
Kaur does not recall this day and the State says that it cannot really
assist in any further way other than to confirm that, according to the
notes, she was looking after quite possibly two people between 7 am
onwards. And I suggest, given her difficulties in recalling and the
nature of the evidence, that you put it to one side.
44 As to Ms Jamola's evidence, the prosecutor, while
acknowledging that the delay in taking a statement from her involved
'an error on the part of the police', the delay nonetheless provided an
explanation for her 'slightly hazy' recollection as to conducting an ECG
on Mr Sym. The prosecutor also emphasised that Ms Jamola agreed in
re-examination that her observations of Mr Sym were made at 1.50 pm
(after the appellant allegedly administered the insulin and left the
hospital). The timing of the ECG at 1.50 pm was also supported by the
appellant's admissions, in her second record of interview, that 'she
never saw them do observations on him'.
45 The prosecutor did not address the jury as to the other alleged
deficiencies in the police investigation.
46 Defence counsel, in submitting that the State had not proved its
case that the appellant administered the insulin, placed emphasis on the
purported inadequacies in the police investigation and the forensic
disadvantages to the appellant. Defence counsel said:2
I suggest to you, members of the jury, I'm going to be neutral here, that
the investigation of this matter was incomplete.
From 18 January 2021, Baker was in possession of the medical notes
from 14 January to 18 January, so four days' worth of notes. Those
records clearly show three things, Bhavneet Kaur was the allocated
carer for Ken Sym in the relevant period, (2) Anna Jamola was a
student nurse engaged in a number of activities with Ken Sym in the
relevant period, (3) Dr Goh's notes purport to show that she attended
upon Ken Sym at 2.10 pm and then had a telephone conversation with
Wendy Sym and then filled in the document that included the 'Not to
resus'.
1 Transcript, The State of Western Australia v Sym, Supreme Court of Western Australia, 11 April 2024,
916 (ts).
2 ts 961.
-- 14 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 15
You know that a statement was not obtained from Bhavneet Kaur until
the week before the trial. He thinks, that being Mr Baker, he reviewed
Exhibit 15.2, that being her notes, in January 2021. Then he didn't
recall and referred to hundreds and hundreds of documents. … when it
was pointed out to him, 'hang on. You've only got 4 days' worth of
notes here' he said:
I said an exaggeration but there was many pages.
… You had a police officer sitting there on oath admitting to you that
he had exaggerated to you. And remember this is at a point in time
where I'm asking him about the key witnesses in this case that he hasn't
identified. He accepted … that Exhibit 15, that being Kaur's notes, are
a significant document and highly relevant.
He accepted the document was obviously relating to a carer for
Ken Sym in the relevant period … it was a significant mistake in
missing this document … he accepted that somebody else being in the
room during the relevant period was relevant. Members of the jury,
how you could miss that document I don't know. You have a look at
the exhibit 15.2. It's so obvious, but this man missed it.
And it wasn't until the prosecutor in the week before the trial tells him,
'you better get a statement'. No statement obtained from Anna Jamola
until August 2021, seven months after the day. He agreed that she was
a highly important witness, … he would have gone through her notes in
January 2021.
I then went through Exhibit 34 with him, Jamola's 12 pages of notes.
He agreed that these were relevant documents. He didn't perceive that
these documents showed a number of interactions though between
Jamola and Ken Sym in the relevant period. Members of the jury, have
a look at those documents. I don't think you need to be medically
trained to realise that this is a lady who's doing a lot of things with
Ken Sym in the relevant period.
And then he said he agreed that the first time he'd really realised their
relevance, that being so obvious, because of the [1.50 pm] time, was as
he sat there. He agreed he'd been in possession of Dr Goh's notes since
18 January 2021. … He agreed she was a significant person to obtain a
witness statement from as she had seen Ken Sym shortly after the
relevant period and had spoken to Wendy Sym, ... But he never
obtained a statement from her. 'I spoke to her about the bloods, but I
never got a statement.'
He again didn't apprehend the significance of her notes when he read
them and again, he just realised the significance as he sat there in that
witness box. Again, members of the jury, it would have been
blindingly obvious. He agreed … that he should have got a statement
-- 15 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 16
from her and he agreed, members of the jury, it's just another significant
mistake.
I then asked him about the medication records from Princess Margaret
Hospital, the ones that I asked Mr Hopps about, the ones that we know
exist, about the kids being administered medication on 9 April 2018. In
hindsight, this was a relevant line of inquiry, … And he accepted that if
no child had been administered medication, that being the Actrapid
10 ml vial on that day, that would be highly relevant …
You might just think, members of jury, that all of these mistakes are
mistakes to the disadvantage of my client. Because no
contemporaneous statement was obtained from the person who was in
the room, that being Ms Bhavneet Kaur. No statement was obtained for
seven months. When I say no statement, no statement till the week
before trial.
Jamola wasn't spoken to for seven months and nobody ever showed her
her contemporaneous notes, which would have been an entirely proper
thing to do. And nobody got the medication records from Princess
Margaret Hospital. They are big mistakes. And they are things,
members of the jury, that impact, I suggest to you, on your assessment
of the state circumstantial case, the jigsaw puzzle, because you don't
have all the pieces. You don't have the pieces because this matter was
not well investigated. And they were easy things to do and they weren't
done.
(emphasis added)
47 Significantly, defence counsel emphasised that the purported
deficiencies in the police investigation were of a forensic disadvantage
to the appellant and were matters which the jury should take into
account before finding the circumstantial case proved, and the appellant
guilty of the offence.
The primary judge's directions
48 The primary judge in her summing up gave orthodox legal
directions, none of which are the subject of complaint. Her Honour
reminded the jury that the primary issue in dispute was whether the
State had proved beyond reasonable doubt that the appellant was the
person who administered the near fatal dose of insulin to Mr Sym, and
if they were so satisfied, whether she did so with the requisite intent.
49 The primary judge then proceeded to set out, with precision and
in some detail, the prosecution and defence cases in respect of the two
contested elements of the offence.
-- 16 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 17
50 The primary judge, when outlining the defence case on whether
the State had proved that the appellant administered the insulin,
summarised the defence counsel's submissions as to the inadequacies of
the police investigation in the following terms:3
… the manner of the investigation being incomplete, meaning you don't
have all the pieces of the puzzle. The investigating officer failed to
obtain statements from relevant witnesses either at all or in a timely
fashion, did not show the notes to help when he did take their
statements, and he failed to obtain relevant records or did not
understand them.
51 Her Honour directed the jury's attention to each of the alleged
police deficiencies or mistakes and the appellant's argument that they
did not have all the material 'or pieces of the puzzle' to find the
circumstantial case proved.
Appeal ground: conviction appeal
52 The single ground of appeal is cast in the following terms:
1. The Learned Trial Judge made a wrong decision on a question
of law, or alternatively occasioned a miscarriage of justice, by
failing to warn the jury that the [appellant] had been forensically
disadvantaged by the mistakes, errors and delays that occurred
in the course of the police investigation.
Particulars
(a) Failure to obtain a statement from the carer Nurse Kaur,
who was present in the ward at the relevant time of the
alleged administration of the exogenous insulin, until
the week before the trial in March 2024;
(b) Failure to obtain a statement from Nurse Jamola, who
was present in the ward at the relevant time until
August 2021;
(c) Failure to obtain records of the Joondalup Pharmacy to
ascertain whether any of the seven vials of Actrapid
insulin supplied to it in 2017 were sold or provided to
staff, patients or visitors who were on the ward at JHC
on 15 January 2021;
3 ts 980.
-- 17 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 18
(d) Failure by Detective Baker to obtain records from the
Joondalup Pharmacy4 as to whether an Actrapid vial
had been provided to be administered to a patient at
[PMH] on 9 April 2018.
The appellant's submissions
53 The appellant contends that the primary judge erred by failing to
warn the jury as to the forensic disadvantages suffered by the appellant
by reason of the deficient police investigation. The appellant submits
that this was a significant issue at trial, and a judicial warning was
required to prevent a perceptible risk of a miscarriage of justice.
54 In relation to the forensic disadvantages suffered, and in support
of the contention that a judicial warning was required, the appellant
emphasises the following matters.
55 First, in relation to the police's failure to obtain a statement from
Ms Kaur until the week before the trial, Ms Kaur's evidence at trial was
limited to her usual practices as opposed to what she in fact did on
15 January 2021. On the defence case, Ms Kaur's evidence was
potentially exculpatory. The State accepted during the trial, and on
appeal, that the only opportunity the appellant had to administer the
near fatal dose of insulin to Mr Sym was between 1.25 pm
and 1.40 pm. Accordingly, the evidence of Ms Kaur (who was in the
room during this period) as to her visual observations was potentially
exculpatory. Yet by reason of the delay in asking her to provide a
statement (and recall events) the evidence suffered from issues of
reliability.
56 Secondly, a statement was not obtained from Ms Jamola until
August 2021. As a result, she had a limited recollection of crucial
events including her conversations with the appellant. Again, the
appellant submits this deprived the appellant of possible exculpatory
evidence as to her lack of opportunity to commit the offence by
administering the insulin undetected.
57 Thirdly, the appellant submits that the pharmaceutical records
may have shed light on whether any of the seven vials of insulin
supplied to the JHC Pharmacy in 2017 were sold or provided to staff or
visitors who were on the ward at JHC on 15 January 2021 or provided
to be administered to a patient at PMH on 9 April 2018. The failure to
4 In oral submissions senior counsel for the appellant confirmed that the reference to the 'Joondalup
Pharmacy' in particular (d) was an error and in fact it was intended to refer to the 'PMH Pharmacy'.
-- 18 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 19
obtain these records thus resulted in potentially exculpatory evidence
being unavailable to the appellant depriving her of the opportunity to
marshal a defence by alleging that the police had failed to exclude other
possible offenders.
58 Given the significance of the 'mistakes, errors and delays' in the
police investigation in the context of the contested issues at trial, the
appellant contends that the primary judge's failure to give any direction
in relation to those forensic disadvantages resulted in a perceptible risk
of a miscarriage of justice. The appellant submits that these were
matters which were not within the common knowledge of the jury.
Accordingly, in the circumstances of this case, a judicial warning was
required. It was insufficient for those disadvantages to be raised by
defence counsel in his closing address, but rather, they required the
primary judge's imprimatur to be properly brought to the jury's
attention.
Respondent's submissions
59 The respondent contends that the alleged deficiencies in the
police investigation are not matters which make it more likely that the
evidence adduced at trial was, or might be, unreliable. This was not a
case where the evidence contained 'hidden risks' for the jury in an
assessment of a witness's reliability. Rather, this was a circumstantial
case where the alleged inadequacies in the police investigation and
evidence were the subject of evidence and counsels' addresses. These
alleged inadequacies would have been an obvious consideration for the
jury when reaching their verdict.
60 The respondent contends that the appellant has not demonstrated
that there was a perceptible risk of miscarriage of justice by reason of
the primary judge's failure to warn the jury about the forensic
disadvantages caused by deficiencies or delays in the police
investigation.
The applicable legal principles
61 It is well established that a judicial warning is required to be
given whenever it is necessary to avoid a perceptible risk of a
miscarriage of justice arising from the circumstances of the case.5 The
5 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; R v GW [2016] HCA 6; (2016) 258 CLR 108
[50]; Eravelly v The State of Western Australia [2018] WASCA 139 [18]; DWM v The State of Western
Australia [No 2] [2019] WASCA 143 [28]; Mansfield v State of Western Australia [2017] WASCA 178;
-- 19 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 20
relevant principles which identify when such a warning is required
were outlined by Brennan J in Carr v The Queen:6
In the majority of cases the assessment of the evidence can be left to the
jury's experience unaided by judicial warnings but there are some
occasions when a warning is needed. A warning is needed when there
is a factor legitimately capable of affecting the assessment of evidence
of which the judge has special knowledge, experience or awareness and
there is a perceptible risk that, unless a warning about that factor is
given, the jury will attribute to an important piece of evidence a
significance or weight which they might not attribute to it if the warning
were given. It is not possible to define a priori the circumstances in
which a warning is necessary: the circumstances which show whether a
perceptible risk of miscarriage of justice exists in relation to the
assessment of evidence include the charge, the evidence and the
conduct and atmosphere of the trial. Although no rule of law postulates
a priori the cases in which a warning is needed, a failure to give a
warning when one is needed leaves the proper significance and weight
of the evidence in doubt. A guilty verdict founded on that evidence
alone may have to be set aside by an appellate court as a miscarriage of
justice because the jury, in the absence of a warning may have reached
their verdict by attributing to the evidence an erroneous significance or
weight.
62 A perceptible risk of miscarriage may arise where there is some
feature of the evidence which is capable of affecting its reliability and
this aspect of the evidence, or its significance, may not be appreciated
by a jury without a judicial warning.
63 In Eravelly v the State of Western Australia this Court
summarised the principles which inform when a judicial warning is
required to avoid a perceptible risk of a miscarriage of justice:7
In considering whether a direction is required in order to avoid a
perceptible risk of a miscarriage of justice, it will therefore be relevant
to consider whether there is a question about the reliability of some
important aspect of the evidence against the accused, whether that
arises from a factor the significance of which may not be appreciated
by the jury, whether the evidence in question is corroborated and
whether and, if so, to what extent the accused suffers a forensic
disadvantage.
The position may be summarised as follows. The judge must give a
warning to the jury about its assessment of particular evidence
(2017) 52 WAR 233 [187]; MLS v The State of Western Australia [2018] WASCA 56 [139]; Huggins v
The State of Western Australia [2018] WASCA 61 [719].
6 Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 325 (Brennan J).
7 Eravelly [26] - [29].
-- 20 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 21
whenever a warning is necessary in order to avoid a perceptible risk of
a miscarriage of justice. As the High Court has recently explained, in
such cases the risk is perceptible to the court because judicial
experience has shown that evidence of this description or character may
be unreliable. A perceptible risk of that kind arises when there is a
feature of the evidence which may adversely affect its reliability, the
significance of which may not be apparent to a lay jury.
Put another way, a direction is required where it is necessary for
alerting the jury to difficulties with particular classes of evidence, or,
we would add, particular evidence, with which they are unlikely to be
familiar.
When a direction is required, it must be crafted, by reference to the
facts and circumstances of the particular case, with the object of
ensuring a fair trial and avoiding the perceptible risk of a miscarriage of
justice.
(emphasis added) (citations omitted)
64 Earlier the Court had observed that the trial judge's perception
that a feature of the evidence was capable of affecting the significance
of, or the weight to be given to, the evidence - and that 'this may not be
appreciated by a lay jury' - was of central significance in assessing the
need for a warning and the terms in which any warning should be
given.8 Much the same point was made by Crennan J in Tully v The
Queen:9
The question is whether all of the circumstances gave rise to some
forensic disadvantage to the appellant, palpable or obvious to a judge,
which may not have been apparent to the jury, thus necessitating a
warning so as to avoid a miscarriage of justice. There is a clear
distinction between such a case and a case where all the circumstances
can be evaluated by a jury in the light of their own experiences.
(emphasis added) (citations omitted)
65 Pritchard JA illustrated the point in DWM v The State of
Western Australia [No 2].10 There, having referred to the authorities
including Carr, Longman and Eravelly, her Honour identified that at
least four matters had to be taken into account in considering whether a
direction was required to avoid a perceptible risk of a miscarriage of
8 Eravelly [20].
9 Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [178].
10 DWM v The State of Western Australia [No 2] [2019] WASCA 143.
-- 21 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 22
justice based on a forensic disadvantage claimed by an accused. The
second matter was expressed as follows:11
[A] perceptible risk of a miscarriage of justice arises where there is a
feature of the evidence which may adversely affect the jury's
assessment of its reliability, but the significance of that feature of the
evidence may not be apparent to the jury. Accordingly, if the forensic
disadvantage suffered by an accused, by virtue of a delay, is obvious to
the jury, it will not be necessary to give a direction about it. By way of
example, a jury may well appreciate, without any direction, the
difficulty, after a very lengthy period of time, for an accused to obtain
telephone records or CCTV footage, or to recall the names of persons
present on a particular occasion.
(emphasis added) (citations omitted)
66 An example of this type of warning is commonly referred to as a
'Longman warning' which will often be required where there is a
significant delay by a complainant reporting childhood sexual abuse,
and the complainant's evidence is uncorroborated. In Longman the
factor which the High Court considered may have not been apparent to
the jury was the appellant's loss of the means of testing the specific
details of the complainant's account which would have been available
to him had there been no delay.
67 There are obvious differences between this case and a case which
requires a 'Longman warning'.
68 In the present case, there was no relevant delay in the matter
being brought to the police's attention or proceeding to trial. The
prosecution case was a circumstantial case which relied on various
pieces of evidence and did not rest on the uncorroborated evidence of a
complainant. Rather, the appellant relies on the general principle
enunciated in Carr that the circumstances of this case were such that a
judicial warning was necessary to avoid a perceptible risk of a
miscarriage of justice.
69 The relevant circumstances which are alleged to give rise to a
perceptible risk of a miscarriage of justice are the police investigators'
unexplained delay in obtaining statements from the witnesses Ms Kaur
and Ms Jamola, and the investigators' failure to obtain various relevant
pharmaceutical records. The appellant contends that the deficiencies in
the investigation were capable of adversely affecting the reliability of
the evidence of Ms Kaur and Ms Jamola as to the appellant's
11 DWM [No 2] [138].
-- 22 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 23
opportunity to commit the offence. Further, the appellant submits that
the failure of investigators to obtain pharmaceutical records adversely
affected the appellant's ability to marshal a defence and refute the
evidence linking the appellant to the vial of insulin located in the
bathroom.
70 It is the appellant's contention that those forensic disadvantages
had the capacity to undermine the reliability of the evidence, and this
may not have been apparent to a lay jury such as to require a judicial
warning.
Consideration
71 As to the police's delay in obtaining statements from Ms Kaur
and Ms Jamola, it may be accepted that by reason of this delay there
was a loss of the chance of fully exploring the nurses' observations of
Ms Sym during the relevant period and challenging the State's case that
she had the opportunity to administer the insulin. Ms Kaur was unable
to recall with specificity her observations that afternoon and could only
say what she would have done by reference to her usual practice.
Similarly, Ms Jamola was unable to recall many of the tasks she
performed on Mr Sym, as well as the precise timing of those tasks,
even by reference to her notations on the medical records. Thus, the
appellant lost the means to establish with greater certainty that there
was limited opportunity for the appellant to administer the insulin
undetected by others.
72 In relation to the police's failure to obtain the pharmaceutical
records, this impaired Ms Sym in marshalling a defence that the
prosecution had not excluded other persons who were potentially
responsible for administering the insulin to Mr Sym. It is important to
note that forensic disadvantage in this context is actual even if it is the
loss of a chance or opportunity.12
73 Accordingly, it may be accepted that the appellant suffered some
forensic disadvantage by reason of the police delay in obtaining
statements from Ms Kaur and Ms Jamola. However, even accepting
that there was some forensic disadvantage, the question of whether a
judicial warning was required to avoid a perceptible risk of a
miscarriage of justice turns on whether the forensic disadvantage, and
its effect on the reliability of the evidence, would not be apparent to a
12 IAB v The State of Western Australia [2015] WASCA 238 [29].
-- 23 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 24
lay jury such that a jury may place inappropriate weight on the
evidence of Ms Kaur and Ms Jamola as to opportunity.
74 It is however important to observe that the evidence of the
appellant's opportunity to commit the offence was but one aspect of a
broader circumstantial case. The prosecution case did not rest entirely
on the evidence of Ms Kaur and Ms Jamola. In proof of its case, the
State also relied on the appellant's connection with the vial of insulin
located in the public bathroom, the presence of the capped orange
syringe located in the sharps container in Room 3B, as well as the
appellant's motive to commit the offence.
75 As to the appellant's link with the vial of Actrapid insulin, there
was a mixed DNA profile extracted from the vial. It was greater than
100 billion times more likely that the appellant was a contributor to that
DNA compared with the DNA originating from two unknown
individuals. Further, vials of Actrapid insulin, like the one located in
the bathroom, were not used at the JHC at the time of Mr Sym's
hospitalisation but were stocked by PMH in 2017 and 2018. They were
not commonly used at the PMH but were used in the endocrinology
ward. The handwritten notation on the vial was consistent with it
having been opened on 9 April 2018 at 3.15 pm. The appellant worked
at the PMH on 9 April 2018 between 7.00 am and 3.50 pm in a ward
that included endocrinology. The capped orange syringe located in the
sharps container in Room 3B was not a type of syringe used on the
ward where Room 3B was located, and medical staff at the JHC were
trained not to recap syringes before disposal. The appellant also had
the knowledge and training to administer insulin either subcutaneously
or via a cannula.
76 There was also considerable evidence of the appellant's motive to
commit the offence found in the series of text messages sent by the
appellant in the months and weeks leading up to 15 January 2021.
Those messages showed the appellant's increasing frustration and
despair at Mr Sym's deteriorating condition and the pressure she was
experiencing as his carer.
77 This was also not a case where the appellant was precluded, by
reason of the delay, from establishing through the evidence of Ms Kaur
or Ms Jamola that there was limited opportunity for the appellant to
administer the insulin to her husband, without detection. The appellant
was able to establish that there were two patients in Room 3B and
Ms Kaur, the carer assigned to both patients, was present at all relevant
-- 24 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 25
times. The appellant also established that Ms Jamola attended to a
large array of tasks at a time proximate to, and on one version during,
the relevant period. The submission that it was unlikely that the
appellant had the opportunity to commit the offence during the relevant
period remained available to the appellant.
78 Irrespective of the delay, it was unlikely that the evidence of
Ms Kaur or Ms Jamola would have ever reached the point where it
established that the appellant had no opportunity to administer the
insulin. The relevant time period extended over about 15 minutes from
approximately 1.25 pm to 1.40 pm. The appellant was experienced in
administering insulin from her work as a nurse, and it was common
ground that it would have taken a short period of time to do so. There
was another patient in Room 3B who was also assigned to the care of
Ms Kaur, so it was open to infer there were periods where Ms Kaur was
distracted, and indeed, Ms Kaur said it was her practice to afford family
members some level of privacy.
79 As to the presence of Ms Jamola, it is also of some significance
that the appellant conceded in her second record of interview on
19 October 2022, that there were no observations conducted of Mr Sym
when she was present during the relevant period (although she resiled
from this admission in her evidence).
80 The overall effect of these matters is that the forensic
disadvantage to the appellant by the police delay in obtaining
statements from Ms Kaur and Ms Jamola was in fact limited.
Moreover, the evidence as to opportunity was only one part of a broad
circumstantial case, and notwithstanding the fact there was some
forensic disadvantage to the appellant by reason of the delay in
obtaining the statements, defence counsel was still able to effectively
challenge her opportunity to administer the insulin during the relevant
period. The most damaging piece of evidence as to her opportunity
was her own admission.
81 As to the forensic disadvantage suffered by the appellant by
reason of the failure to obtain pharmaceutical records, it may be
accepted that this impaired the appellant's ability to marshal a defence
that some person other than the appellant had access to the vial of
insulin located in the public bathroom. However, the extent of any
forensic disadvantage to the appellant must be considered in light of the
strength of the whole of the evidence (outlined earlier) which
connected the appellant to the vial, and the other pieces of
-- 25 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 26
circumstantial evidence. The appellant could, and did, still make the
point that these investigations were not undertaken, and that was a
factor the jury needed to take into account in assessing the strength of
the case as to the appellant's connection to the insulin vial.
82 Crucially, not only were the forensic disadvantages suffered by
the appellant limited in nature, but they also concerned matters well
within the common knowledge of a lay jury. The investigator's delay in
obtaining statements from the witnesses, and the resulting forensic
disadvantage to the appellant was emphasised with skill and clarity by
defence counsel during his cross-examination of Ms Kaur, Ms Jamola
and Detective Baker. It was also given considerable emphasis in
defence counsel's closing address. Given the evidence and defence
counsel's submissions, it would have been readily apparent to the jury
that the delay in obtaining the relevant statements rendered it more
difficult for the appellant to establish the specific observations of
nursing staff during the relevant period, and more difficult for the
appellant to establish that there was no opportunity for the appellant to
administer the insulin undetected. Indeed, it was a large focus of the
defence case. The forensic disadvantage to the appellant caused by
deficiencies in the investigation would have been obvious to a jury.
This was not a matter within the special knowledge or remit of the
primary judge which required a judicial warning.
83 Similarly, it would have also been obvious to the jury that the
police's failure to obtain the pharmaceutical records resulted in the
appellant's loss of opportunity to marshal evidence to pursue a line of
defence that other persons on the ward on 15 January 2021 had access
to the vial of insulin. To the extent that this failure bore on the jury's
assessment of the appellant's connection to the vial of insulin located in
the public bathroom, there was no feature of the evidence which was
not within the common knowledge or understanding of the jury such as
to require a judicial warning. Given counsels' addresses, and indeed the
primary judge's comments when summarising the defence case, it
would have been plain to the jury that they should have regard to the
deficiencies in the investigation when considering the force of the
evidence connecting the appellant to the insulin. The relevance of the
evidence to an assessment of the prosecution case must have been well
known to the jury and did not require a judicial warning.
84 While not determinative, it is also relevant that the appellant was
represented by experienced senior counsel at trial who did not seek a
direction in the terms now agitated for by the appellant. This tends to
-- 26 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 27
support a conclusion that the forensic disadvantages to the appellant
caused by the deficiencies in the police investigation were matters that
were obvious to the jury, and there was no risk that the jury would not
take those matters into account when assessing the reliability of the
evidence as to opportunity and the appellant's connection to the vial of
insulin without a judicial warning. It is reasonable to infer that had it
been otherwise, experienced senior counsel would have requested the
judicial warning now contended for by the appellant.
85 For those reasons, we are satisfied that the forensic
disadvantages suffered by the appellant by reason of the deficiencies in
the police investigation, and the adverse impact of those matters on the
reliability of the evidence as to opportunity and the appellant's
connection with the vial of insulin, were matters which the jury were
able to assess without the need for a judicial warning. The absence of a
judicial warning was not productive of a perceptible risk of a
miscarriage of justice.
86 We would grant leave to appeal against the conviction on the
single ground of appeal but would dismiss the appeal.
Appeal against sentence
87 The appellant appeals against her sentence on the sole ground
that the sentence was manifestly excessive. As mentioned earlier, the
primary judge sentenced the appellant to imprisonment for 9 years with
eligibility for parole backdated to commence on 8 March 2024.
88 Following the guilty verdict, the primary judge found that
consistent with the jury verdict, the factual circumstances of the
offending were as follows:
1. Mr Sym's cognition declined from about 2009. In 2014, he was
diagnosed with angiopathy which results in vascular dementia.
Over the years which followed, Mr Sym's condition continued
to decline and on 20 December 2020, he was admitted to the
JHC having suffered a stroke. He remained in hospital for four
days.
2. On 26 December 2020, Mr Sym was re-admitted to the JHC
having suffered a severe stroke and remained there until
6 January 2021. He was diagnosed with type 2 diabetes. He
was not prescribed insulin. After his discharge from hospital,
the appellant stopped work to care full-time for Mr Sym.
-- 27 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 28
3. On 14 January 2021, a regional assessor attended the home to
evaluate whether Mr Sym was eligible to receive government
subsidised in-home help. The appellant wanted him to remain
at home and not be moved to a care facility. Mr Sym was
deemed eligible to receive between three and eight hours of
assistance per week.
4. Mr Sym was admitted to the JHC emergency department on
14 January 2021, and upon his admission his blood sugar levels
were recorded to be normal. The appellant stayed with him
until around 10.00 pm that night and returned at 10.00 am on
15 January 2021. Mr Sym was still in the emergency
department and had been assigned a carer (Ms Kaur) to stay by
his bedside and monitor his behaviour due to his dementia.
Later that day, between 1.20 pm and 1.42 pm Mr Sym was
moved to a two-patient room (Room 3B) on the medical
assessment unit.
5. The appellant left the JHC at 1.45 pm. As she left, she spoke to
nursing staff (Ms Jamola) and asked them to minimise their
observations of Mr Sym to allow him to get some rest. There
was no basis to dispute the appellant's evidence that this request
was simply so that her husband would get a good night's sleep
after disrupted sleep the night before.
6. At some time prior to the appellant's departure from the JHC at
1.45 pm, the appellant administered a dose of insulin to
Mr Sym, either subcutaneously, or through a cannula that had
been inserted in the emergency department on the previous day.
7. The appellant returned to the hospital at about 4.52 pm. While
at the hospital she disposed of the empty vial of insulin in the
public bathroom near Room 3B where it was located by
Ms Keys, before leaving the hospital at about 6.45 pm.
8. A blood sample was taken from Mr Sym, and it revealed
extremely high levels of insulin. The results indicated an
external administration of insulin. If left untreated prolonged
hypoglycaemia can cause seizures, coma, irreversible brain
damage and ultimately death. Without intervention Mr Sym
would have died. Mr Sym's blood sugar was stabilised and was
at a normal level in the late morning of 16 January 2021.
-- 28 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 29
9. The appellant had taken the partly used Actrapid vial of insulin
from her workplace at the PMH. On 15 January 2021,
at 10.00 am when she attended at the JHC, she had the vial with
her. Before she left the JHC at 1.45 pm, the appellant used the
syringe to inject her husband with the contents of the vial of
insulin.
10. The primary judge made no finding as to when the appellant
decided to administer the insulin, other than it was at least
sometime before she did so on 15 January 2021.
11. The prosecution had not established beyond reasonable doubt
that the appellant brought the needle with her to the JHC. The
most favourable inference was that she used a needle to
administer the insulin which she accessed at the JHC.
12. No adverse inference should be drawn from the fact that the
appellant had the vial of insulin with her when she returned to
the JHC at 4.52 pm.
13. The appellant administered the insulin intending to kill her
husband.
89 These factual findings were not challenged on the appeal against
sentence.
90 As to the appellant's personal circumstances, she was 60 years
old at the time of the offence and aged 63 at the time of sentencing.
She was employed as a nurse for over 40 years. She married her
husband when she was aged 21 years old, and they had been married
for almost 40 years at the time of the offence. Together they have three
children who are all adults and supportive of the appellant. The
appellant has no prior convictions and was otherwise of prior good
character.
91 As to the appellant's mental health, the primary judge received
two reports from a clinical and forensic psychologist, Dr James McCue.
In his first report dated 10 July 2024, Dr McCue considered that
towards the end of 2020 and the beginning of 2021, the burden of
caring for her husband took an emotional toll on the appellant, as
evident from the text messages relied on during the trial. Dr McCue
considered that it was likely the appellant was experiencing carer's
fatigue or burnout, and this was a motivation or explanation for her
-- 29 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 30
offending. Dr McCue expressed the opinion that the appellant was
unlikely to re-offend.
92 In an addendum report dated 17 July 2024, Dr McCue considered
that there was a strong connection between the appellant's
compromised mental condition and the offending. Dr McCue also
expressed the view that the appellant's plea of not guilty was a
psychological defence mechanism designed to help her maintain her
self-image as a loving wife.
The sentencing remarks
93 The primary judge outlined her findings as to the factual
circumstances of the offending consistent with the verdict, and the
appellant's personal circumstances, in the terms outlined above.
94 The primary judge accepted that at the time the appellant
committed the offence she was in a state of 'emotional turmoil'.
However, while her Honour found that the appellant's judgment was
'clearly impacted' by her mental state, she considered that the appellant
remained sufficiently rational to select the means of ending her
husband's life, and of carrying it out and disposing of the evidence.
95 The primary judge found the following aggravating features to
the offending:
1. Mr Sym did not believe in euthanasia and would not have
agreed to participate in voluntary assisted dying but noting this
was not a substantially aggravated factor.
2. The offending constituted a familial breach of trust. Mr Sym
was particularly vulnerable, and he had entrusted his care to the
appellant, who breached that trust.
3. The appellant breached the trust placed in her as a nurse
working at PMH when she accessed and took a vial of insulin
from the hospital which she ultimately used to commit the
offence.
4. While the offending was not characterised by any lengthy
premeditation, the offence required some level of deliberation
and was not committed completely spontaneously.
96 The primary judge also found the offending was mitigated by the
following matters:
-- 30 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 31
1. The appellant had no criminal history and was previously of
good character. There were numerous references tendered from
family, friends and work colleagues which attested to her
positive character, professional competence and her devotion to
her husband throughout their marriage. The primary judge
found that the offending was out of character.
2. The appellant had made a significant contribution to the
community.
3. The appellant was unlikely to reoffend and had excellent
prospects of rehabilitation.
4. The sentencing objective of personal deterrence was of limited
weight given the appellant was not likely to reoffend.
5. The appellant's judgment and decision making was impaired as
a result of emotional fatigue from caring for her husband.
There was a causal link between her mental condition and the
offending thereby reducing the appellant's moral culpability.
97 Notwithstanding the appellant's reduced moral culpability, the
primary judge considered that 'real weight' needed to be given to
principles of general deterrence to deter others from offending in a
similar manner.
98 The primary judge observed that there was no tariff for offences
of attempted murder and there are few comparable cases.
99 There was no challenge on appeal to the primary judge's findings
as to the aggravating or mitigating features of the offending. It was not
alleged that the primary judge had made any specific error. Rather the
appellant's complaint was one of implied error.
The parties' contentions
100 The appellant contends that this is an unusual, if not
extraordinary, case which called for some leniency. While
acknowledging that the offending was serious, the appellant contends
that her moral culpability was substantially reduced, and principles of
general deterrence, whilst still relevant, should have been moderated
given that the appellant's impaired mental condition was causally
related to the offending.
-- 31 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 32
101 In support of her complaint of manifest excess, the appellant
relies on various authorities which involve more egregious examples of
the offence of attempted murder, but where comparable or more lenient
sentences have been imposed. The appellant contends that in all the
circumstances of this case, the sentence was outside the appropriate
range for this offence and offender.
102 The respondent submits that the offending involved significant
aggravating features and, notwithstanding the matters put in mitigation,
and the appellant's reduced moral culpability, there was no implied
error, and the sentence was not manifestly excessive.
Consideration
103 The principles governing a complaint of manifest excess are well
established. The determinative question is whether, after considering
all the circumstances relevant to the sentence, and notwithstanding that
no specific error of reasoning may be apparent, the sentence imposed is
unreasonable or plainly unjust.13
104 To determine whether a sentence is manifestly excessive, it is
necessary to consider the sentence from the perspective of the
maximum sentence prescribed by law for the crime, the standards of
sentencing customarily observed with respect to the crime, the place
which the criminal conduct occupies in the scale of seriousness of
crimes of that type, and the personal circumstances of the offender.14
105 When applying this approach, it needs to be borne in mind that
there is no single correct sentence, and sentencing judges should be
allowed 'as much flexibility in sentencing as is consonant with
consistency of approach and as accords with the statutory regime that
applies'.15
106 The maximum penalty for an offence of attempted murder
contrary to s 283 of the Criminal Code is life imprisonment.
107 There is no tariff for the offence of attempted murder. While all
offences of attempted murder will inevitably be serious, given the State
will have proved an intention to kill on the part of the offender, the
13 House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt and McTiernan JJ);
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [25] (Gleeson CJ, Gummow, Hayne and
Callinan JJ).
14 The Queen v Morse (1979) 23 SASR 98.
15 Markarian [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ) citing Johnson v The Queen [2004]
HCA 15; (2004) 78 ALJR 616 [5] (Gleeson CJ), [26] (Gummow, Callinan and Heydon JJ).
-- 32 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 33
circumstances of the commission of the offence and the personal
circumstances of the offender may vary significantly. Accordingly, the
sentences imposed for offences of this kind are variable and there is no
sentencing range.16
108 In support of the manifest excess complaint, the appellant
primarily relies on the authorities of The State of Western Australia v
Hillier17 and Austin v The State of Western Australia.18
109 In Hillier, Steytler P reviewed several cases of attempted
murder.19 The appellant observes that except for one decision in
relation to which a sentence of 9 years and 4 months' imprisonment was
imposed, all other sentences were less than the sentence imposed on the
appellant, in circumstances where the offending was arguably more
serious.
110 The case of Hillier involved a State appeal against sentence. In
that matter, the respondent pleaded guilty to the attempted murder of
his wife. He entered the bedroom where she was sleeping with her
young son, placed a pillow over her neck and stabbed her in the eye.
He then attempted to smother and strangle her. The appeal was
allowed and the respondent re-sentenced to imprisonment for 7 years
(reduced to 6 years and 10 months' imprisonment for time served in
custody). The appellant contends the offending in Hillier is far more
serious, yet the sentence more lenient.
111 In Austin, the appellant was a medical professional who
attempted to kill a chronically ill patient with insulin. A sentence of
5 years and 6 months' imprisonment was imposed. Again, the appellant
contends the offending in Austin is far more serious, yet the sentence
more lenient. However, in that case, the appellant did not actually
administer the dose of insulin to the patient, and he was not the patient's
full-time carer. It follows that the breach of trust was not as significant
as in this case. Further, the appellant pleaded guilty to the offence and
received substantial benefit for his guilty plea and cooperation with the
authorities.
16 The State of Western Australia v Radovic [2020] WASCA 46; (2020) 282 A Crim R 233 [61].
17 The State of Western Australia v Hillier [2008] WASCA 184.
18 Austin v The State of Western Australia [2023] WASCA 191.
19 Hillier [30] - [35].
-- 33 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 34
112 It is apparent from our broader review of the authorities20 that
there is no sentencing range for the offence of attempted murder. There
is also no case which is factually comparable to this matter, the closest
being Austin where there were considerable differences in the
offending and personal circumstances of the offender. Accordingly, it
is necessary to consider the manifest excess complaint by reference to
the maximum sentence, the place which the criminal conduct occupies
in the scale of seriousness of crimes of that type, and the personal
circumstances of the offender.
113 As recognised by the primary judge, there were several
undoubtedly serious features of the offending. It involved a gross
breach of familial trust. The appellant also used her position and
knowledge as a nurse to acquire and administer the insulin. While
principles of general deterrence were of less significance in this case
than in a case where the offender did not suffer from the appellant's
impaired mental condition at the time of the offence, general deterrence
remains a relevant sentencing consideration. As the primary judge
observed, there are stringent legal requirements for voluntary
euthanasia, and other persons need to be deterred from similar unlawful
conduct. It was also relevant that Mr Sym did not approve of
euthanasia. Further, while there was no lengthy pre-meditation, and the
offence was committed while the appellant was experiencing fatigue
and considerable emotional turmoil, the offending was not spontaneous
and involved a level of planning.
114 Notwithstanding those features of the offending, this was not the
most serious example of the offence of attempted murder. The offence
was committed in the context of a loving relationship where the
appellant had become mentally and emotionally fatigued by caring,
largely unsupported, for her cognitively declining husband. There was
a causal link between the appellant's mental condition and the offence
such that her moral culpability was reduced. While the appellant did
not take responsibility for her offending, there was a psychological
explanation for her reluctance to acknowledge and admit the offending.
In those circumstances, the appellant's failure to admit her offending
conduct did not preclude a finding that she had excellent prospects of
rehabilitation and was unlikely to re-offend. Personal deterrence was
also of limited relevance in sentencing.
20 The State of Western Australia v Phillips [2023] WASCA 104; Radovic; Garlett v The State of Western
Australia [2009] WASCA 44; Ammoun v The State of Western Australia [2009] WASCA 182; Hillier and
the authorities cited at [30] - [35].
-- 34 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 35
115 The appellant's personal circumstances also called for
moderation in the sentence. She had no prior convictions and had lived
a particularly productive and prosocial life during which she had made
significant contributions to the community. The appellant had the
ongoing support of her family and close friends.
116 The primary judge faced a difficult sentencing exercise with a
need for the sentence to meet the objectives of general deterrence,
condign punishment and denunciation while still reflecting the
appellant's reduced moral culpability and personal circumstances which
called for some leniency. Given the peculiar circumstances in which
the offence was committed, including the appellant's compromised
mental condition, combined with her previous good character and that
she was unlikely to re-offend, ultimately, we are satisfied that the
sentence bespeaks implied error in the exercise of the sentencing
discretion and was manifestly excessive.
117 After taking into account all relevant sentencing factors
including the seriousness of the offence, the circumstances in which it
was committed and the appellant's personal circumstances as already
outlined, we would impose a sentence of 6 years and 6 months'
imprisonment backdated to commence on 8 March 2024 with an order
as to eligibility for parole.
Orders
118 We would make the following orders:
CACR 83 of 2024
1. Leave to appeal is granted.
2. The appeal is dismissed.
CACR 84 of 2024
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The sentence imposed is set aside and in lieu thereof the appellant is
sentenced to 6 years 6 months' imprisonment.
4. The appellant is eligible for parole.
5. The sentence is backdated to commence on 8 March 2024.
-- 35 of 36 --
[2026] WASCA 96
JUDGMENT OF THE COURT
Page 36
I certify that the preceding paragraph(s) comprise the reasons for decision of
the Supreme Court of Western Australia.
PD
Associate to the Hon Justice Vaughan
30 JUNE 2026
-- 36 of 36 --