New South Wales Supreme Court CITATION : R v DIAZ [2000] NSWSC 91 revised - 25/02/2000 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70064/99 HEARING DATE(S) : 24/02/2000 JUDGMENT DATE : 25 February 2000 PARTIES : REGINA v Flocerpina DIAZ JUDGMENT OF : Barr J at 1 COUNSEL : Crown: Miss W Robinson QC Accused: Mr T Thomas SOLICITORS : Crown: S E O'Connor Accused: Belen Oag CATCHWORDS : Criminal Law - homicide - special verdict of not guilty on the ground of mental illness. DECISION : See paragraph 21. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GRAHAM BARR J Friday, 25 February 2000 70064/99 - REGINA v Flocerpina DIAZ JUDGMENT 1 HIS HONOUR: The accused is charged that on 26 May 1999 at Hamilton New South Wales she murdered Samuel Diaz. At the commencement of the trial yesterday I directed that a plea of not guilty be entered. In defence of the charge she has by her counsel admitted the whole of the Crown case but has asserted that she is not criminally responsible for her act because at the time of the events giving rise to the charge she was mentally ill so as not to be responsible in law for her action. It has been submitted by counsel on both sides that the Court should return a special verdict that the accused is not guilty because of her mental illness. 2 On 14 February 2000 the accused signed a form of election for trial by judge alone, having received advice from her solicitor and counsel. The Crown consented on 17 February 2000. Notwithstanding questions about her mental capacity on the day of the events giving rise to the charge, counsel for the Crown and the accused are satisfied that the accused had the mental capacity so to elect. It is clear from the report of Dr Westmore of 17 February 2000 that the accused has the capacity to elect. 3 On 26 May 1999 the accused and her child Samuel were alone in the house where they lived in Hamilton, a suburb of Newcastle. The child was seven years old. The accused stabbed him a number of times with a long kitchen knife and pushed the knife through the left eye into the brain for the whole of the length of the blade. Her husband found her when he came home from work. She was seated near the child with her hand in his mouth. She was muttering incoherently and smearing blood on her clothes. 4 The accused is a forty-six year old woman who was born in the Philippines and grew up in a stable family. She learned English and Filipino. She obtained a science degree. She worked as a laboratory technician and for a short time as a clerk. For several years she worked in a business conducted by her mother. She came to Australia in 1991 and married her husband at the age of thirty-six or thirty-seven. They lived in Newcastle where her husband was employed as a rigger. 5 On 13 March 1992 the child Samuel was born in Newcastle. The accused was attended by an obstetrician, Professor Giles. She developed a mental illness which was said to be post-natal depression, as part of which she believed that Professor Giles was using her son for experiments. She believed that Professor Giles was in love with her and was manipulating her life. He told her in her head about his special feelings for her. 6 The accused was treated by Dr Fiona Green from the crisis team at the hospital and was put on medication. Her predominant symptoms were auditory hallucinations and delusions. Her illness lasted two years. After that time she returned to the Philippines where she was treated with herbal medicine. She returned to Australia. 7 In January 1995 the accused gave birth to a daughter in Newcastle but the child died at five days of age from an intracranial haemorrhage. The accused suffered a recurrence of psychotic symptoms with delusional ideation involving Professor Giles. That was in spite of the fact that Professor Giles avoided any involvement in the second birth, having been informed about the symptoms of the accused's mental illness after the birth of the first child. The accused was treated as an in-patient and later as an out-patient. Her symptoms slowly abated once again. 8 On 16 May 1999 the accused again exhibited delusional ideation about Professor Giles. She was visited at home and assessed by her case manager, Sister Hunt. She remained psychotic but was reluctant to agree to an increase in her anti-psychotic medication. She refused anti-psychotic medication by slow release injection. 9 On 24 May 1999 Sister Hunt visited the accused at home and thought that she was slightly improved. 10 On 26 May 1999 the accused's husband left the flat where they lived to go to work. During the day Dr Cohen and Sister Hunt visited the accused at home. She was assessed as being thought disordered and displaying signs of her psychiatric illness, though she appeared to be responding to medical treatment. Dr Cohen and Sister Hunt tried by questioning her to assess whether there were a risk that she might harm herself or others but she remained guarded and denied symptoms that might suggest the existence of that risk. 11 During the late afternoon and evening of 26 May 1999 screams were heard coming from the general direction of the accused's flat. One was thought to come from the child and some from the accused. 12 After she was found with the dead child the accused was taken to the James Fletcher Hospital where an examination and emergency treatment were carried out. She was admitted as an involuntary patient. 13 The accused was seen by Dr Westmore for the purpose of an opinion about her mental state at the time she killed her child. Dr Westmore wrote reports on 10 August 1999 and 17 February 2000. He gave oral evidence. The Crown qualified Dr Strum, who provided a report on 5 November 1999. 14 The accused appeared to Dr Westmore as an alert and attentive historian without ideas of reference from television or radio. She had a blunted unresponsive affect and spoke in a monotonous way, mainly in response to questions, but there was some spontaneous speech. She expressed delusional thoughts relating to the child, the Jehovah's Witnesses and Professor Giles. Dr Westmore thought that the accused was stressed because her son was apparently having some school difficulties, for which she had approached the teacher and the principal, who had tried to assist her. There is support for that assertion. 15 Dr Westmore thought that when the accused killed her son she was suffering from delusional beliefs of a persecutory nature with erotomanic feelings towards Professor Giles and a distortion of religious views. She had either auditory hallucinations or thought insertion, the content of which appeared to be directly related to the homicide. She also had some features of the Capgras syndrome, a rare condition in which the patient believes that a close person has been replaced by an exact replica. In this case, Dr Westmore thought, the accused held the view that the child was a dummy and that, despite the stabbing, he was not dead. Dr Westmore thought, however, that this was not a pure case of the Capgras syndrome but that she suffered similar symptoms in conjunction with another illness, most likely a paranoid schizophrenic condition. 16 Dr Westmore is of the view that the accused was mentally ill at the time of the incident, suffering from a disease of the mind which totally deprived her of her capacity to know that she ought not to do the act. He thought that there might also be an issue whether she was aware of the nature of what she was doing, that is, that it would lead to the death of the child, but could find no evidence to indicate that she did not understand the quality of her actions. 17 Dr Strum was furnished with a copy of Dr Westmore's first report. He was in entire agreement with it. He concluded that the accused had suffered three bouts of an illness which was at first thought to be puerperal psychosis but which, on the third occasion, when her illness was not related to child birth, indicated very clearly a diagnosis of paranoid schizophrenia. Dr Strum was of the view that at the time of the killing the accused was psychotic and not in control of her actions. He thought that she probably knew the nature of what she was doing but had no concept of the wrongness of her actions. He thought that the psychotic belief that she had not killed her child but a dummy probably helped her to act as she did, because the killing was so much against her nature. Like Dr Westmore, Dr Strum thought that although some features of the Capgras syndrome were present, this was not a case of pure Capgras syndrome. He thinks that the thought that the child was a dummy was merely an act denying what happened. 18 It is for the accused to prove that it is more likely than not that the illness from which she was suffering when she killed her child so affected her that either she did not know what she was doing or that she did not know that what she was doing was wrong. The Crown prosecutor submitted that on all the evidence the accused must be taken to have proved that her illness at the time prevented her knowing that what she was doing was wrong. In my opinion that was a proper submission. In my opinion the verdict contended for by both counsel is the only one to which the Court could properly come. This is a truly tragic case because the accused had no criminal tendencies and no control over her illness. 19 The sympathy of the Court goes out to the accused and her relatives. 20 The statute which governs cases like this requires me to make 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. In practice that will mean that the accused will be referred to the Mental Health Review Tribunal under the provisions of the Mental Health Act 1990. The Tribunal will review the accused's case and make recommendations to the responsible Minister at prescribed intervals about the detention, care and treatment of the accused. In making any such recommendation the Tribunal will have regard to the safety of members of the public as well as to the continuing health and needs of the accused herself. 21 I find that the accused is not guilty of the charge by reason of mental illness. I order that she be detained in a hospital until released by due process of law. ********** Last Modified: 09/25/2000 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.