New South Wales Supreme Court CITATION : REGINA v Elizabeth Anne BURDIS [1999] NSWSC 614 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70052/98 HEARING DATE(S) : 18 June 1999 JUDGMENT DATE : 23 June 1999 PARTIES : Regina Elizabeth Anne Burdis JUDGMENT OF : Sully J COUNSEL : Mark Antonty McAdam QC - Crown Christopher John Bruce - Defence SOLICITORS : Crown Solicitor Legal Aid of NSW CATCHWORDS : Criminal law - murder by stabbing and 2 accompanying and serious discrete stabbing offences; defence of mental illness precluding criminal responsibility - Mental Health (Criminal Procedure) Act 1990 (NSW), s.38.; Trial by Judge alone pursuant to an election made in conformity with Criminal Procedure Act 1986 (NSW), s.32(1).; Held: defence established; verdict on each count of not guilty by reason of mental illness - ancillary orders ACTS CITED : Mental Health (Criminal Procedure) Act 1990 (NSW) s.38 Criminal Procedure Act 1986 (NSW), s.32(1) DECISION : Not guilty by reason of mental illness - to be detained as a forensic patient at the Bunya Unit of the Cumberland Hospital until released by due process of law. SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION SULLY J 23 June 1999 70052/98 - Regina v Elizabeth Anne BURDIS REASONS FOR VERDICT 1 HIS HONOUR: On 18 June instant Elizabeth Anne Burdis, ["the accused"], was presented for trial in this Court upon an indictment containing three counts. 2 The first count in the indictment charges the accused with having murdered her father, Ronald John Burdis, on 29 March 1998 at Rous. In order to establish this charge, the Crown must prove beyond reasonable doubt all of the following: (i) The death in fact of Mr. Burdis; (ii) An act of the accused causing such death; (iii) An accompanying intent of any of the kinds stipulated in section 18(1)(a) of the Crimes Act 1900 (NSW) . 3 The second count in the indictment charges that the accused at the same time and place wounded her mother, Dorothy Edna Burdis, with intent to murder her. In order to establish this charge, the Crown must prove beyond reasonable doubt all of the following: (i) A wounding in fact of Mrs. Burdis; (ii) An act of the accused causing such wounding; (iii) An accompanying intent to murder, being any of the types of intent nominated in section 18(1)(a) of the Crimes Act 1900 (NSW) . 4 The third count in the indictment charges the accused with having maliciously wounded, at the same time and place, her sister, Helen Margaret Burdis. In order to establish this charge, the Crown must prove beyond reasonable doubt all the following: (i) A wounding in fact of Miss Burdis; (ii) An act of the accused causing such wounding; (iii) Accompanying malice in the accused. The accused, upon arraingnment, pleaded not guilty to each of those three charges. 5 On 18 March 1999 the accused signed a document purporting to be an election made pursuant to section 32(1) of the Criminal Procedure Act 1986 (NSW). The document is Exhibit B in the present proceedings. I am satisfied, and was so satisfied at the time of the arraignment of the accused, that all relevant requirements of section 32(1) of that Act have been complied with. I proceeded, therefore, on Friday last to try the accused in the absence of a jury. 6 No oral evidence was adduced at the trial, it being agreed by the learned Deputy Senior Crown Prosecutor and by learned counsel for the accused that the trial should proceed upon the basis of agreed documents. 7 One of those documents is a statement of facts, which is in evidence as Exhibit C. It says all that needs to be said by way of summarising the relevant objective facts, and I therefore reproduce it as follows: "About 7.55 pm on the 29 March, 1998 the accused was in her bedroom of her parents home at a property at 322 Rous Road, Rous. Also in the dwelling was her father Ronald John Burdis, 67 years old, her mother Dorothy Edna Burdis, 62 years old, her sister Helen Margaret Burdis, 24 years old and the accused's daughter Elizabeth Sharlot Burdis who is 9 years of age. The accused's mother Dorothy went into the kitchen to prepare herself some food and noticed that food she had prepared earlier had been eaten. Mrs. Burdis commented loudly about the accused having eaten the food. At this point the accused left her bedroom and walked to the kitchen area. The accused then selected a knife approximately 15 centimetres in length from the kitchen area and then walked into the loungeroom. At this stage the accused's mother was standing facing away from the accused. The accused walked up behind her mother Dorothy and commenced to stab her with great force in the upper right side of her back. The accused delivered at least four stab wounds which went right through her mothers back exiting the front of her shoulder. Mrs. Dorothy Burdis then collapsed forward with blood flowing profusely from the knife wounds. The accused's father Ronald Burdis then came to the assistance of his wife and attempted to take hold of his daughter by the arms. The accused then stabbed her father with the knife in the upper chest area. Mr. Burdis collapsed on the floor having been fatally wounded by the knife wound. Two wounds were later observed one on the upper left side of the chest and one on the upper right side of the deceased. The accused's sister Helen Margaret Burdis then came to assist her mother and father and at this point the accused raised the knife at her sister and said, "Do you want some too?". The accused then stabbed her sister in the chest area, the blade deflected off the sternum and punctured her lung. Helen Burdis then yelled out to the accused's daughter Elizabeth, 9 years old to run from the house to across the road to a neighbours to get help. Both Mrs. Dorothy Burdis and Helen Burdis then managed to leave the house to the front verandah to ensure the safety of the child. At this stage the accused calmly walked back into the kitchn and went to the sink and washed blood from the knife and her hands. Her father remained lying deceased on the loungeroom floor. The accused then rang the ambulance and openly declared that the ambulance was required as she had stabbed three people. Ambulance and Police arrived a short time later and the accused was spoken to. Ambulance officers then conveyed Mrs. Dorothy Burdis and Helen Burdis to Lismore Base Hospital for treatment. Mrs. Dorothy Burdis was in a serious but stable condition having lost a considerable amount of blood and Mrs. Helen Burdis was transported by helicopter to Brisbane Hospital with a punctured lung. The accused was spoken to firstly at the scene and then interviewed by electronic interview at Lismore Police Station." 8 A considerable volume of additional documentary material was placed before the Court in connection with the relevant objective facts and circumstances surrounding the offences charged in all three counts of the indictment. I have read and considered the whole of that material; and I am satisfied beyond reasonable doubt that the Crown has proved the actus reus charged in each of the three counts. The contrary was not contended at the trial. 9 The only issue that was raised at the trial was whether the accused's case falls within section 38 of the Mental Health (Criminal Procedure) Act 1990. That section is, so far as is at present relevant, in the following terms: "If, in an indictment ……………….. , an act ………………….is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done………………., then, if it appears ………….., that the person did the act ……………… charged, but was mentally ill at the time when the person did ……………… the same, ………..( the tribunal of fact at the trial) ………………..must return a special verdict that the accused person is not guilty by reason of mental illness." 10 The onus of proof of the fact of mental illness as thus defined rests upon the accused. The relevant standard of proof is proof on the balance of probabilities. 11 The law relating to this special defence of mental illness is well established. It was stated, in its fundamental form, as long ago as 1843 and in the following terms: "Was the accused at the time the offence was committed suffering from a defect of reason, from a disease of the mind such as not to know the quality and nature of the act he was doing; or if he did know it, that he did not know what he was doing was wrong." Regina v McNaughton (1843) 8 ER 718 at 722 . 12 As to the concept of knowledge in an accused person of the wrongfulness of the relevant act, the foundational principle is stated as follows by the High Court of Australia in Sodeman v R (1943) 55 CLR 192 at 215: "If the disease so governs the faculties that it is impossible to reason with some moderate degree of calmness in relation to the moral quality of what he is doing he is prevented from knowing what he does is wrong." 13 Such is the relevant law. As to the relevant facts, I have had regard, in particular, to four reports provided by four different expert witnesses in the field of psychiatry. 14 Dr. Igor Petroff has been treating the accused since June 1989. His report is Exhibit D in the present proceedings. His conclusions are expressed as follows: " Opinion Elizabeth Burdis is an intellectually dull woman who suffers from Chronic Schizophrenia for the past 14 years. Her illness was such that she could never be without medication and would relapse as soon as it was stopped. Prior to the tragedy in March, Elizabeth had become chaotic with her medication and had relapsed again. This previously kind and gentle woman whose hobby in childhood was dressing up guinea pigs, could only have been psychotic to have attacked her family and particularly her father, of whom she was very fond, and who was her closest ally. Besides her psychosis, there were no predictive factors indicative of dangerousness. There is a very strong clinical impression that whilst novel anti-psychotics produce superior results, when patients stop them, their psychosis are much more florid and bizarre. At the time that I last saw Elizabeth Burdis this was not evident, but my contact with the Prison Hospital indicated that Elizabeth was very floridly psychotic." 15 Dr. Michael Giuffrida is a Consultant Psychiatrist at the Mullawa Correctional Centre. Dr. Giuffrida has submitted a report, which is Exhibit E in the present proceedings. Dr. Giuffrida notes in his report that he did not have, at the time of writing the report, relevant hospital discharge summaries; any report from Dr. Petroff; or any other relevant documents. Subject to those limitations, Dr. Giuffrida's own view was that at the time of his examination of the accused, which appears to have been in April 1998, the accused: "(a)lthough she is obviously quite psychotic and has committed a serious crime……… is probably not presently mentally ill within the meaning of the Mental Health Act NSW 1990 , because she does not represent a serious harm to herself or others at this time." 16 Dr. Giuffrida does, however, conclude his report as follows: "I have explained to Ms Burdis that the local Court has requested a psychiatric report from me and I thought that it would be in her interest to provide such a report to the court on the basis that she was undoubtedly in my opinion suffering from an acute psycyhotic illlness at the time of the offence and in my view probably not able to exercise rational judgment ." [emphasis added] 17 Dr. Robert Delaforce submitted at the request of the Director of Public Prosecutions a report dated 14 March 1999. This report is a lengthy and carefully crafted one, and I have found it of great assistance for present purposes. Dr. Delaforce expresses his agreement with the diagnosis made by Dr. W. Lucas to whose report I shall refer presently. Dr. Delaforce expresses his support for the proposition that the accused was at the material time mentally ill in the sense contemplated by section 38 of the Mental Health (Criminal Proceedings) Act. More particularly, Dr. Delaforce expresses these views: "Her active features of Schizophrenia at the time of the offences result in a defect of reason caused by disease of the mind. She seemed to know what she was doing at the time of the offences, stabbing her parents and her sister Helen. However, this was clouded by her talk of all 3 being "robots" at the time of the stabbing. Also she knew that it was wrong to stab them. However, because of her active Schizophrenia at the time of the offences she was incapable of reasoning with some degree of calmness as to the wrongness of the acts or of comprehending the nature or significance of the acts." And later: "In short, at the time of the offences she felt under threat of her own life and was given advice about how to stab her parents and sister, advice or influence that may have partly derived from auditory hallucinations, such that overall she had irrational beliefs and could not reason appropriately about the wrongness of the acts of stabbing or comprehend the nature of those acts." 18 Dr. William Lucas submitted to the accused's solicitor a report dated 7 March 1999. It is sufficient for present purposes to quote Dr. Lucas' opinion, which is as follows: "I believe Ms Burdis has the defence of mental illness to the charges. At the time of the stabbing she was suffering from a defect of reason due to a disease of the mind, chronic paranoid schizophrenia. As a result, although she knew the physical nature and quality of her acts, she was unable to reason about them with a moderate degree of sense and composure. She believed she had no choice in what she did. She gave me many reasons for her actions and, with the exception of her anger at being accused of gluttony, all these were of a delusional nature and, importantly, a number were concerned with beliefs that her daughter was being sexually abused and prostituted. Her father was not the initial target in the attacks but he was the only one to die. Ms Burdis had elaborate delusional beliefs about his behaviour and activities and she had been thinking for weeks about stabbing him along with her mother and sister. Ms Burdis will require long term psychiatric treatment and this needs to be received in a hospital as a forensic patient with oversight by the Mental Health Review Tribunal. Although she has not offended violently before, the nature of her illness and her actions on the day in question are such that lengthy inpatient treatment is likely to be necessary." 19 I accept the whole of the body of expert evidence that I have summarised from the four reports which are, respectively, Exhibits D, E, S and T in the present proceedings. 20 I am comfortably satisfied on the probabilities that the accused has made good the proposition that, as to each of the offences charged against her in the indictment, she is not guilty by reason of mental illness in the sense for which provision is made by section 38 of the Mental Health (Criminal Proceedings) Act 1990 (NSW). I return, as to each count in the indictment, a special verdict in those terms. 21 Section 39 of that same statute requires that, a special verdict having been returned in terms of section 38, there be made an order that the accused "be detained in such place and in such manner as the Court thinks fit until released by due process of law". 22 The accused is, and has been for some time, detained in the Bunya Unit of the Cumberland Hospital. She was arrested on 29 March 1998, and has been treated by the authorities as a mental patient since that date. It seems that she has been treated as a forensic patient since some later date. I was informed that there is no impediment to her continued detention at the Bunya Unit of the Cumberland Hospital. I order therefore, and pursuant to Section 39 of the Mental Health (Criminal Proceedings) Act 1900, that the accused be detained at the Bunya Unit of the Cumberland Hospital as a forensic patient, and until released by due process of law. 23 It is important to explain for the public information generally, but in particular for the information of the members of the accused's immediate family, that the special verdicts which the Court has returned, and the consequential detention order which the Court has made, do not entail that the accused will simply walk free in the way that happens when an accused person is found not guilty by a verdict other than a special verdict dependent upon a finding of mental illness. What will happen in the wake of the order made by this Court is that the accused will become a forensic patient in the sense contemplated by the Mental Health Act 1990; and she will be dealt with in the manner for which provision is made in the detailed statutory scheme that is set out in Chapter 5 of that Act. Put very simply, that means that the accused will come under the constant supervision and monitoring of the Mental Health Review Tribunal, a body constituted by section 252 of the Act, and in such a way as to bring together a representative body of legal, and of psychiatric, expertise, and of appropriate general community experience. The relevant legislation entails, put simply, that the accused will not be released back into the general community without the Tribunal's having first made a positive finding, based upon credible evidence, that she is no longer a danger to any member of the community. Even if some such recommendation be made in due time, the accused will be released back into the community, again speaking simply and in the context of the present particular case, subject to appropriate conditions which will be appropriately monitored. 24 There is one remaining matter that calls for the attention of the Court. It concerns Exhibit U, which is a four-page document prepared for the information of the Court by Miss Helen Burdis, the accused's sister and the person named as the victim in the third count in the indictment. 25 The document is, essentially, what would be described these days as a 'victim impact statement'. The document opens, in part, with this statement: "I understand that, in making this statement, there is little likelihood in making any impact in the outcome of this trial, however I feel strongly that there be an opportunity for the family's voice to be heard." 26 It is, of course, the case that such a statement cannot influence, as a matter of law, the outcome of the trial of the accused. It is, however, my view that Miss Burdis is entitled to put her document forward for the information of the Court; and is entitled, more importantly, to have it treated with a respectful seriousness by the Court. The detail of what the document says is heart-rending. For my own part, I cannot bring myself to say the usual trite and conventional things, such as that I can well imagine the anguish and the sense of loss and the familial de-stabilisation of which the document speaks. I think that the proper course is simply to receive, and to acknowledge, the contents of the document; to express sincere condolences to Miss Burdis and the other members of her immediate family; and to express the sincere hope that time will, at least to some extent, assuage the grief that the document so graphically and so movingly expresses. 27 I presume to say one further thing, which, ordinarily, I would not say. It is this: that I express the hope that the media will be properly respectful of the grief and distress, and of the overwhelming sense of frustration and incomprehension, that are being experienced by the surviving members of the Burdis family, not the least important of whom is a little girl aged some 10 years; and that the media will, in consideration of those matters, report the present trial, if indeed it needs to be reported at all, with a decent restraint. ********** Last Modified: 06/28/1999 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.