R v DGL [2004] NSWSC 414

New South Wales Supreme Court

CITATION : R v DGL [2004] NSWSC 414 HEARING DATE(S) : 14 May 2004 JUDGMENT DATE : 14 May 2004

JUDGMENT OF : Simpson J DECISION : The accused is not guilty by reason of mental illness.

CATCHWORDS : special verdict - not guilty on the grounds of mental illness - knowledge of the nature and quality of acts but no knowledge that what was done was wrong LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990, s38 CASES CITED : The Queen v McNaghten (1843) 8 ER 718 PARTIES : Regina DGL - Accused FILE NUMBER(S) : SC 70110/03 COUNSEL : Wendy Robinson - Crown Tania Evers - Accused SOLICITORS : Nicole Paul - Crown Margaret Zahra - Accused

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

Friday 14 May 2004

70110/03 REGINA v DGL

JUDGMENT 1 HER HONOUR: On 7 October 2003, the accused, DGL, was charged with the murder earlier that day of her eleven-year-old daughter, J. She was committed for trial to this Court and has elected, with the consent of the Crown, to a trial by judge alone. I am satisfied that the necessary conditions for the exercise of that election have been met. 2 She was indicted on the charge of murder today, 14 May 2004, and pleaded not guilty on the ground of mental illness. Part 4 of the Mental Health (Criminal Procedure) Act 1990 makes relevant provisions for the consideration of such a defence. In particular, s38 provides as follows: " 38 Special verdict

If, in an indictment or information, an act or omission 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 or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness." 3 The defence of mental illness is establish on the principles stated in The Queen v McNaghten (1843) 8 ER 718 and are so well-known that they do not here need repeating. 4 Evidence was put before me in the form of two bundles of documentary material which were marked as exhibit A. I have read so much of that material as my attention was specifically directed to and I am satisfied that I am adequately informed as to the events which gave rise to the charge and the matters relevant to the question of mental illness. 5 I will state the facts, which are uncontested, very briefly. On the evening of 7 October 2003, DGL attended with her five or six year old daughter, C, at the Toukley Police Station. Statements of police officers whom she there encountered record bizarre behaviour and apparently disordered thinking. During the course of her various exchanges with the police officers, DGL stated that she had earlier given J some Valium but this had failed to make J sleepy. DGL added, "So I had to strangle her". 6 Police and ambulance officers attended at DGL's home where they found the body of J on a bed. 7 Post-mortem examination disclosed that death had been caused by asphyxia, apparently from "broad obstruction and pressure applied to the face and upper trunk". 8 At this hearing DGL was represented by counsel. There was no dispute that DGL had engaged in conduct that caused J's death, nor that she had done so with the intention of causing to J death or grievous bodily harm. C told police officers that DGL had told her that she had killed J. 9 In the circumstances, I am comfortably satisfied beyond reasonable doubt that the elements of murder are made out, that is that DGL engaged in acts that caused death and that she did so with the relevant intention. I therefore turn to the matters concerning mental illness. 10 In this respect, reports were put before me on behalf of DGL which were marked exhibit 1. Essentially, these are psychiatric reports. Dr Giuffrida, a treating psychiatrist, reported on 7 May 2004, including the passage: "There is no doubt that [DGL] was acutely psychotic at the time of the offence which caused the death of her daughter." 11 Dr Greenberg who examined DGL on 28 and 29 December 2003 and had earlier seen her on 8 October 2003 reported on 23 January 2004 in a lengthy and detailed report. Dr Greenberg wrote: "I am therefore firmly of the opinion that at the time period surrounding the alleged offence, [DGL] was suffering from a 'disease of the mind' severe mental illness as defined in the NSW Mental Health Act 1990 . I am also of the opinion that at the time period surrounding the alleged offence, [DGL] did not know that what she was doing was wrong. She was labouring under the direct influence of psychotic symptoms of her severe mental illness to such an extent as to render her incapable to appreciate the nature or quality of her actions at the time period surrounding the alleged offence." 12 In the circumstances, I am also satisfied that the defence of mental illness has been made out. Specifically, I am of the opinion that at the time she did the acts that led to the death of her daughter, DGL did know the nature and quality of her acts but I am satisfied that she did not know that what she was doing was wrong. 13 Accordingly, I propose to return a special verdict in accordance with section 38 of the Mental Health (Criminal Procedure) Act. 14 I find that the accused is not guilty by reason of mental illness.