Supreme Court New South Wales Medium Neutral Citation: R v Seville (a pseudonym) [2023] NSWSC 556 Hearing dates: 22 May 2023 Decision date: 25 May 2023 Jurisdiction: Common Law Before: Button J Decision: Verdict of act proven but not criminally responsible returned. Consequential orders. Catchwords: MENTAL HEALTH – criminal proceedings – homicide of baby of accused – evidentiary inquiry as opposed to trial – defence of mental illness — mental health impairment well established – appreciation of nature and quality of act – no real appreciation of wrongfulness of act – special verdict returned Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 4, 28, 30, 31 Category: Principal judgment Parties: Rex (Crown) Roberta Seville (a pseudonym) (Accused) Representation: Counsel: F Gray (Crown) R Pontello SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Madison Marcus (Accused) File Number(s): 2021/277104 Publication restriction: Pseudonym adopted for name of accused to protect identity of deceased child pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) JUDGMENT 1. On the afternoon of Thursday 20 May 2021, Ms Roberta Seville (a pseudonym for the accused) was in the family home in a suburb of Sydney, alone with her four-month-old baby boy. At the time, she was aged 32 years, had been married for some years, and was the mother of a three-year-old daughter. The accused was university qualified, had been gainfully employed, enjoyed a large circle of friends, and was active within a Christian Church. Although marred by the early death from breast cancer of her mother, her upbringing had been a satisfactory, indeed happy one. The accused suffered from no dependencies on alcohol, drugs, or gambling, and she had never intersected with the criminal justice system in her life. 2. In the short absence from the home of her husband, the accused took the opportunity to drown her son by holding him underwater in a baby's bath until he stopped breathing, and died. 3. How and why did such a person come to do such a distressing and lamentable act to her own baby? 4. The answer, I am well satisfied, is that, at that time, the accused suffered from a mental health impairment that led her to fail to appreciate the profound and palpable wrongfulness of her act (see generally ss 4, 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act)). I hold that opinion for the following reasons. 5. First, two eminent and highly experienced forensic psychiatrists firmly hold the shared opinion that, at the time, the accused suffered from peri-natal major depression with psychotic features to it. I approach the latter phrase as meaning that, in more than one way, the thinking and feelings of the accused were thoroughly divorced from reality. 6. Secondly, the Crown and the accused, each of whom was represented by counsel very well experienced in criminal law, contended for the same thesis. 7. Thirdly, there were contemporaneous signs of the deterioration of the accused's mental state back then. Among them were that friends and family saw her on occasion to be "not herself" and "spaced out". She expressed irrational worries about finances to her husband on occasion, putting pressure on their relationship. She undertook Internet searches with suicidal intent, and on one occasion attended a train station seeking to harm herself. She told friends and family of her inability to cope with the care of her second child, who was difficult to settle. She consulted her general practitioner, who referred her to a psychologist, who in turn prescribed an antidepressant. Alerted to the possibility of self-harm on her part, a suicide prevention service reached out to her at around the same time. Tragically, and no doubt due to the self-referential lack of insight that is a notorious symptom of mental illness, the accused failed to take the prescribed medication and failed to get help from the service. 8. Fourthly, it is true that the baby had been born with hearing issues, which would present something of a challenge to his immediate care and, I believe, later upbringing. But that factor – and any other difficulty that the accused was having in her life at that time – cannot remotely render rational her catastrophic action. To express my opinion more clearly: this was not an act of resentment against the baby, nor some form of punishment of her husband or anyone else, nor an explosion of anger or frustration giving way to fatal violence. On the contrary, it was a deeply irrational act, motivated by ideas that were divorced from reality, ideas that I shall discuss in a moment. 9. Fifthly, it is also true that there is some evidence to suggest that, on a very superficial level, the accused possessed some sense of the wrongfulness of what she was doing. That evidence is as follows. She waited until her husband was away from home before drowning their baby. She immediately apologised for what she had done on his return. Her plan – itself bizarre to the point of absurdity – was to escape the stresses in her life by being incarcerated for killing her baby, with the hope that she herself might be killed in custody, thereby bringing an end to her suffering. That showed, I think, some appreciation of the prospect of punishment. 10. But all of those indications of some appreciation of wrongfulness existed at a very shallow level, in my opinion. At a much deeper level, the accused in her disturbed state believed that she was solving the purported problems that she and her family were experiencing, and thereby doing something that was actually righteous. 11. In short, despite those countervailing aspects, I am well satisfied that the accused, at the time of carrying out the act constituting the physical element of the alleged offence, did not know that the act was morally wrong. Certainly, the accused was unable to reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong. And I do not believe it is circular reasoning to say that I am convinced that, if she had been so able, she would never had done what she did. 12. Sixthly, the behaviour of the accused before 20 May 2021, and her treatment since that date, are also supportive of my conclusion. Before she extinguished the life of her son, the accused had never been a violent person; as I understand it, quite the contrary. In other words, this homicidal act was absolutely out of character, which supports the presence of a compelling mental condition at the time. And once she was charged with murder and incarcerated, the accused was promptly made an involuntary patient based on her mental state. She has remained so ever since, not least because, although her progress and prognosis are good, there remain undoubted concerns about her state of mind, and the possibility of serious harm to herself or others. 13. In summary then: on the evidence placed before me, there is no doubt whatsoever about who it was who did the act that caused the death of the deceased named in the indictment. But I am also in no doubt that, at the time, the person who did that act was suffering from a mental health impairment, as defined by s 4 of the Act. In particular, I accept the unanimous expert evidence that the accused had a mental health impairment arising out of an affective disorder, namely clinical depression, and in all likelihood a psychotic disorder; which led to an ongoing disturbance of thought, and mood; regarded as significant for clinical diagnostic purposes; and impairing her emotional wellbeing, judgment, and behaviour. 14. And I am just as satisfied that, although the accused did appreciate that she was drowning her son, that impairment caused her not to appreciate that what she was doing was wrong in any real sense. To repeat myself: on the contrary, she tragically believed that she was doing something right. 15. For those reasons, I shall shortly return a verdict of "act proven but not criminally responsible" pursuant to s 30 of the Act, and in accordance with the joint submission of the parties. 16. It remains only for me to make a few concluding remarks before pronouncing formal orders. Those orders, again proposed by the parties unanimously, are designed to ensure the continuing care of the accused and, of course, the ongoing protection of the community. 17. First, I commend the parties for proceeding by way of s 31 of the Act. I think that that relatively new process has spared all involved a great deal of unnecessary formality, legalism, time in court, and further emotional pain as a result. 18. Secondly, there is no question in a matter such as this of me ordering anything other than continuing detention and care, whereby psychiatric experts take responsibility in the years ahead for the gradual reintegration of the accused into the community. 19. Thirdly and finally, although I have received no formal victim impact statements, I infer without difficulty that the death of the deceased on 20 May 2021 has occasioned immense suffering to many. And I believe that, if she has not already done so, the accused when completely well will come to see the enormity of her own grossly disturbed act. I extend my condolences to all who are suffering, and I express the hope that the conclusion now of the formal proceedings within the criminal justice system will provide some relief to all such persons. Orders 1. I make these orders: 1. A special verdict is entered, pursuant to s 31 of the Act, namely that the act alleged in the indictment is proven but the accused is not criminally responsible; 2. Pursuant to s 33 and s 34 of the Act, the accused is to be detained at the Forensic Hospital Malabar or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law; 3. The Registrar must notify the Minister for Health of these orders within 7 days; 4. The Registrar must notify the Mental Health Review Tribunal of the verdict and these orders within 7 days; 5. The Registrar must provide the Mental Health Review Tribunal with a copy of the judgment, orders and exhibits within 7 days. 6. The Registrar must notify Justice Health of the verdict and orders, and provide a copy of the judgment, orders and exhibits to Justice Health within 7 days. ********* 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: 25 May 2023