Supreme Court New South Wales Medium Neutral Citation: R v BB [2022] NSWSC 1698 Hearing dates: 12 December 2022 Date of orders: 13 December 2022 Decision date: 13 December 2022 Jurisdiction: Common Law Before: Wilson J Decision: 1. With respect to the offence of murder charged against the accused by the indictment dated 1 August 2022 the Court returns the special verdict of act proven but not criminally responsible pursuant to Section 31 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW). Catchwords: CRIME – murder – defence of mental health impairment – availability of the special verdict where defendant and prosecutor agree that evidence establishes a mental health impairment – s 31 Mental Health Cognitive Impairment Forensic Provisions Act – post-natal depression – bipolar disorder Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Criminal Procedure Act 1986 (NSW) Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) Evidence Act 1995 (NSW) Category: Principal judgment Parties: Rex BB Representation: Counsel: A Robertson (Crown) R Pontello SC (Accused) Solicitors: Solicitor for Public Prosecutions NSW (Crown) Madison Marcus (Accused) File Number(s): 2021/31275 Publication restriction: Nil Judgment 1. HER HONOUR: This is a matter which involves the alleged murder of a child. Section 15A(1)(c) of the Children (Criminal Proceedings) Act 1987 (NSW) applies, and prohibits publication of the name of the deceased. Because of that provision, and of the operation of s 15A(5) of that Act, it is intended to refer in this judgment to the both the deceased and the accused by pseudonyms. 2. Having been arraigned before this Court on 5 August 2022 on an indictment charging her with the murder of an eight week old baby (who will be referred to as Baby Z) the accused, Ms BB, appeared for trial before the Court sitting without a jury on 12 December 2022. 3. Rather than proceed to trial the parties advised the Court that they agreed that the evidence establishes a defence of mental health impairment, and the Court was asked to proceed pursuant to s 31 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the MHCIFP Act"). 4. On the basis of the evidence contained within Exhibit A, that was clearly an appropriate course for the Court to take. Is a Judgment Necessary? 1. There is an apparent tension between s 31 of the MHCIFP Act and s 133 of the Criminal Procedure Act 1986 (NSW). The former provides as follows: "31 Special verdict where defendant and prosecutor agree on impairment The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if— (a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and (b) the defendant is represented by an Australian legal practitioner, and (c) the court, after considering that evidence, is satisfied that the defence is so established." 1. Section 133 of the Criminal Procedure Act, which applies to "[a] Judge who tries criminal proceedings without a jury", requires the judge to "include the principles of law applied by the Judge and the findings of fact on which the Judge relied" when giving judgment. Arguably, since a proceeding pursuant to s 31 of the MHCIFP Act does not involve "trying" a criminal case, s 133 of the Criminal Procedure Act does not apply. 2. However, the section reflects a common law requirement that a court provide reasons for the decisions it makes, an approach which promotes transparency in judicial decision making, and facilitates open justice. For that reason, I propose to give a judgment in the usual course. Such a judgment should include a statement of the relevant law, and of the evidence from which the facts are found. The Law 1. The terms of s 31 are set out above. The requirements of s 31(a) and s 31(b) are met, the parties having advised the Court of their agreement as to the availability of the special verdict, and the accused being represented by senior counsel and a solicitor. 2. The special verdict is said to be available because the accused has a mental health impairment. That term is defined by s 4 of the Act, relevantly as follows: "4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if— (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons— (a) […] (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) […] (3) […]." 1. The "special verdict" to which s 31 refers is found in the combined operation of ss 28 and 30 of the MHCIFP Act. Section 28 is in these terms: "28 Defence of mental health impairment or cognitive impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person— (a) did not know the nature and quality of the act, or (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). (2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities. (3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect. (4) In this Part, act includes— (a) an omission, and (b) a series of acts or omissions." 1. Section 30 provides for the consequences of a conclusion pursuant to s 28(1), as follows: "30 Effect of finding of act proven but not criminally responsible because of mental health impairment or cognitive impairment A jury must return a special verdict of act proven but not criminally responsible if the jury is satisfied that the defence of mental health impairment or cognitive impairment has been established." 1. Thus, if the Court concludes on the balance of probabilities that, on the evidence placed before it pursuant to s 31, the accused has a mental health impairment as defined by s 4 such that she did not know the nature and quality of her act, or, that the act was wrong (being unable to reason that it was with a moderate degree of sense and composure), the special verdict must be returned. 2. Section 31 allows the Court to consider the availability of the defence and the special verdict, without need for a trial to be held, on the basis of the evidence tendered. The Evidence 1. The Crown tendered the following documents, excluding a copy of the indictment): 1. Statement of facts pursuant to s 191 of the Evidence Act 1995 (NSW); 2. Report of Dr Adam Martin, forensic psychiatrist, dated 25 May 2022; 3. Report of Dr Stephen Allnutt, forensic psychiatrist, dated 25 May 2021; 4. Report of Dr Stephen Allnutt, forensic psychiatrist, dated 26 July 2021; 5. Report of Dr Stephen Allnutt, forensic psychiatrist, dated 27 July 2021; 6. Decision of the Mental Health Review Tribunal ("MHRT") dated 7 July 2022; and 7. MHRT Treating Team Report dated 1 – 2 June 2022. 1. The facts agreed between the parties establish that the accused was formally diagnosed with bipolar disorder following an admission to Westmead and Cumberland Hospitals in September 2019, suffering with grandiose delusions, inflated self-esteem, and auditory delusions. She spent a week in hospital, being discharged with a prescription for Olanzapine, an anti-schizophrenic medication. 2. Soon after the accused's discharge her General Practitioner ("GP") prepared a mental health treatment plan for her. 3. In late February or early March 2020, the accused fell pregnant. Although the baby had not been planned, and the prospect of her pregnancy left the accused in tears, she and her husband decided to keep the baby. Baby Z was born on 30 November 2020. 4. An Edinburgh Post Natal Depression Scale questionnaire administered to the accused was unremarkable, and the accused was discharged home on 3 December 2020. 5. On 4 December 2020 the accused saw a GP and reported that she was coping well. She saw a different GP at a new practice on 18 December 2020, and again gave a favourable report of her circumstances. She did not report her past medical history. 6. On the morning of 21 December 2020, the accused sent her husband a text message noting "Mama is well so our baby girl is safe". 7. By late January 2021 the accused was observed by family to pray and recite religious passages. She told her husband that she was "fighting demons". Although the accused occasionally behaved in this way, and so it was not unusual, her husband suggested that she should go to the hospital and start taking her medication again, the accused having ceased to take it at some stage after her discharge from Cumberland Hospital. Over the next few days, the accused continued to talk about demons. 8. On 31 January 2021 the accused went to Church, where she fell asleep on the floor. At some stage she threw her mobile telephone into a drain, conduct which had also occurred in the past. 9. On 1 February 2021 the accused went to the new medical practice and saw a GP. She was accompanied by her husband and the couple had Baby Z with them. The doctor who saw the accused concluded that she had symptoms of depression, with some test results raising concerns of self-harm or risk to Baby Z. The accused asserted that she thought about suicide but had never planned to kill herself. She said she loved her baby and would never hurt her. The accused referred to feelings that she had been molested in childhood. She was prescribed 50mg daily of Sertraline, an anti-depressant medication. She did not, however, show any signs of behavioural disturbance, and her husband raised no concerns about her behaviour. The doctor thought that there was no acute risk of the accused harming herself or her baby. 10. Later that day the accused apologised repeatedly to her husband, without need, and also asked him if he had been raped. 11. The following day the accused's husband left the family home to take an older child to school. Before he left, he saw that the accused ran and then got into the bath, which was filled almost to the top.. 12. After the accused's husband left, she put Baby Z into the bath with the intention of drowning the baby. Baby Z died in the bathtub. 13. The accused's husband returned home at about midday and found Baby Z in the bath, floating face down. He found the accused outside in the garden, naked, with a rope or cloth tied about her neck. She began to call him a paedophile. He telephoned the emergency operator, who instructed him to remove the baby from the bath and commence resuscitation. He did as he was told, but the baby could not be revived. 14. At around 12:15pm police arrived at the premises and took over first aid to Baby Z. Other officers went into the rear garden where they found the accused, still naked, with the rope or cloth around her neck now tied to a clothesline. She was screaming about her husband and father being "paedophiles". An officer asked the accused how long the baby had been in the bath, but she said she did not know. She said, "I just want to die, let me die". 15. She went on to make claims of sexual abuse against her and continued to nominate family members as paedophiles. She said she had taken "a lot of medication", as many as 6 tablets, or 15. A box of medication was found beside her on the ground. 16. The accused told the police officers that she had gotten into the bath with Baby Z and, although she didn't want to kill her, that had been her intention in putting the baby into the bathwater. She said she couldn't look after her baby but nor could she leave her with family members whom she asserted were paedophiles. She said "I was trying to drown her. I killed my baby". 17. Baby Z was taken to hospital but declared dead shortly after 2:00pm that day. The cause of her death has not been able to be ascertained, although drowning was not excluded. 18. The accused was transported to Westmead Hospital where she gave an account of taking a large amount of her medication because she wanted to die. She reported a "mental breakdown" after the birth of each of her children. 19. The accused's reports of mental illness are confirmed by the expert forensic psychiatric evidence that is before the Court. 20. Dr Stephen Allnutt and Dr Adam Martin were asked by, respectively, the accused's legal representatives and the Crown to examine the accused and provide an opinion as to any mental health impairment that she may have suffered at the time of Baby Z's death. Having examined the accused, both doctors agree that the accused has a mental health impairment, and that the defence is available to her. 21. Dr Allnutt assessed the accused via an audio visual link on 13 May 2021. He was thoroughly briefed with relevant material. He concluded: "Overall, in my opinion, [the accused] likely has a bipolar affective disorder. When she experiences disturbed mood at times, she experiences psychotic symptoms associated with her mood, and hypomanic or depressive symptoms. A differential diagnosis, however, includes a schizoaffective disorder and less likely, a schizophrenia with associated mood disturbance." 1. Although Dr Allnutt has not, in giving this opinion as to the nature of the mental health impairment from which the accused suffered at the material time, noted that the disturbance, "would be regarded as significant for clinical diagnostic purposes" as required by s 4(1)(b) of the MHCIFP Act, this aspect of the definition can be readily inferred on balance from the whole of the evidence. 2. As to s 28 of the Act, Dr Allnutt opined that: "[…] at the material time of the alleged offence, [the accused] as [sic] suffering from a "mental health impairment"/"disease of the mind" (manic, depressive and psychotic symptoms), derived from an underlying mental condition, namely a bipolar affective disorder or schizoaffective disorder, which interfered with her capacity to reason. Her "mental health impairment" caused her not to know that the act was wrong – that is, she could not reason with a moderate degree of sense and composure about whether the act (as perceived by reasonable people) was wrong, and she has a defence of mental impairment available to her." 1. Nothing in any of the material subsequently provided to the doctor caused him to change these opinions. 2. Dr Adam Martin has reached the same conclusions. He was able to assess the accused on 2 May 2022, also via an audio visual link. Like Dr Allnutt, Dr Martin was comprehensively briefed with relevant documentation. Having reviewed the material and seen the accused he gave the same diagnosis as Dr Allnutt: "[The accused] can be diagnosed with Bipolar I Disorder…Bipolar disorder is considered a major mental illness […]". 1. The doctor regarded the accused as "clearly psychotic" when she killed Baby Z. He continued: "[The accused] was clearly mentally ill at the time of the alleged offending and there is a direct nexus between severe mental illness and the alleged events. In relation to criminal responsibility, having regard to the Mental Health Cognitive Impairment Forensic Provisions Act 2020, [the accused] would probably have been aware of the nature and quality of the alleged violence. However, she would not have been able to appreciate the wrongfulness of the alleged offending given her highly disturbed mental state, and would not have been able to reason with moderate composure. In my view, the defence of mental health impairment can be clearly argued, and is available to her. It is likely that she experienced a post-partum psychosis in the context of underlying bi-polar disorder, which tragically led to her having highly disturbed and distorted beliefs and hallucinatory experiences, severely clouding her judgment, and speculatively making her feel scared and hopeless, hence leading to violent actions to her baby and subsequent attempted suicide". 1. As with Dr Allnutt, Dr Martin did not expressly state that the disturbance, "would be regarded as significant for clinical diagnostic purposes" per s 4(1)(b) of the Act. He has, however, stated that bipolar disorder is considered a major mental illness and again, inferentially, the test is satisfied. Conclusion and Verdict 1. Having regard to all of the material that has been placed before the Court, not all of which I have summarised, the Court is satisfied beyond reasonable doubt that the accused committed the physical acts the Crown is required to establish to prove the offence of murder on the indictment dated 1 August 2022. 2. I am also satisfied on the balance of probabilities, accepting as the Court does the evidence of Drs Allnutt and Martin that, whilst the accused likely knew the nature and quality of her act, she did not know that the act was wrong because of a mental health impairment she suffered at that time. 3. The Court is satisfied that the defence of mental health impairment is established. With respect to the offence of murder charged against the accused by the indictment dated 1 August 2022 the Court returns the special verdict of act proven but not criminally responsible. ********** Amendments 14 December 2022 - Correction to coversheet. 14 December 2022 - Amendment to Coversheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2022