R v Shan Shan Xu [No 2] [2005] NSWSC 70

New South Wales Supreme Court

CITATION : R v Shan Shan Xu [No 2] [2005] NSWSC 70

14/02/05 HEARING DATE(S) : 15/02/05 16/02/05

JUDGMENT DATE : 18 February 2005

Common Law Division JURISDICTION : Criminal List

JUDGMENT OF : Kirby J

DECISION : Verdict of not guilty by reason of mental illness; Order for release subject to conditions, including review by Mental Health Review Tribunal (refer para 71).

CATCHWORDS : Criminal Law - Judge Alone trial - mother accused of murder of 4 year old son - plea not guilty by reason of mental illness - accused no longer in custody - whether should return to custody - order for conditional release after verdict.

LEGISLATION CITED : Mental Health (Criminal Procedure) Act, 1990

M'Naghten (1843) 10 Cl and Fin 200 [8ER 718] CASES CITED : R v Line [2004] NSWSC 1148

Regina PARTIES : Shan Shan Xu

FILE NUMBER(S) : SC 2004/70015

P Miller (Crown) COUNSEL : Ms D Yehia (Acc)

Ms M Sleeton (DPP) SOLICITORS : Ms J Harris (LAC)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

DAVID KIRBY J

Friday 18 February 2005

2004/70015 REGINA v Shan Shan XU

JUDGMENT ON VERDICT 1 KIRBY J: Shan Shan Xu stands charged with the murder of her son, Stephen Xu. Stephen died on 31 March 2003 at Meadowbank. He was four and a half years old. 2 Ms Xu has pleaded not guilty by reason of mental illness. She has, with the consent of the Crown, elected to be tried by a Judge sitting without a Jury.

Background. 3 Ms Xu was born on 30 November 1970 in Shanghai, China. At the time of her son's death she was 33 years old. She grew up in China, where she studied accountancy. She has a brother. He is four years younger and remains in China, as does her father. Her mother, however, emigrated to Australia in 1992. 4 In 1995 or thereabouts, Ms Xu married a man who was already living in Australia. She thereafter accompanied her husband to Australia, where she worked as a waitress. Her husband, however, was a gambler. After approximately three years Ms Xu and her husband agreed to separate. They then divorced. Ms Xu moved in with her mother, her only relative in Australia. Her mother rented an apartment in the city. 5 Ms Xu thereafter formed a relationship with a man who worked in the construction industry. She became pregnant. The pregnancy, however, put an end to the relationship. She decided, nonetheless, to keep the child. Stephen was born on 2 October 1998. Ms Xu gave up work in order to look after Stephen. 6 Ms Xu's mother rented space in her apartment to young travellers who would usually stay for a short time. One such traveller, Ms Denise Kiely, provided a statement. She observed Ms Xu on a daily basis, as she interacted with Stephen. It was plain to her that Ms Xu and her mother loved Stephen. She described them as a very close family. She saw nothing which would suggest that Ms Xu would harm Stephen. 7 Stephen was a happy and healthy child. When Ms Xu began a course at TAFE, Stephen was placed in a child care centre. However, she was not happy with the care provided. She withdrew Stephen from the centre. Thereafter, with the help of her mother, she looked after Stephen. 8 In late 2002, Ms Xu's mother made arrangements to take Stephen to China. She wanted him to meet his grandfather. Ms Xu remained behind. It was planned that her mother and Stephen would be away from Australia for approximately five months. 9 Before her mother's departure there were symptoms of mental illness afflicting Ms Xu, although they were not recognised as such. Ms Xu's mother thought that her daughter had become lazy. She appeared sluggish and without energy. She had no enthusiasm. 10 Whilst Stephen was with her grandmother in China, Ms Xu telephoned regularly. She wanted to speak to Stephen. She later provided doctors with a description of her isolation during this period. She felt increasingly sad and withdrawn. She was particularly sensitive to noise. She found it difficult to make decisions, even easy decisions, such as the purchases she should make at the supermarket. She had no energy. She slept more than usual. She rarely left the flat. 11 Ms Xu's mother gave evidence that, having been away for a number of months with Stephen, she received a disturbing telephone call from her daughter. During their conversation her daughter said that she wanted to die. 12 The mother returned to Australia at once with Stephen. She found her daughter utterly lacking in energy. She was "not interested in anything". She did not want to cook, she neglected to bathe or shower, or groom herself. She simply lay in bed all day. She continued to express thoughts of taking her own life. Alarmingly, she made the following comments to her mother in relation to Stephen: (T18) "Q. Did she say anything about Stephen? A. That she will want to take him with her so I won't have to look after him for the rest of my life - that me being the grandmother, I can't always look after him because I will get old." 13 Ms Xu's mother took her daughter to see their general practitioner, Dr Silvia Wong. Dr Wong immediately spoke to the Community Mental Health Centre attached to the St Vincent's Hospital. Arrangements were made for the crisis team from that centre to visit Ms Xu that evening, accompanied by an interpreter. 14 Ms Xu repeated to the crisis team that she not only contemplated taking her own life, but that of her son. She reluctantly agreed to accompany them to the St Vincent's Hospital, Caritas Centre, that being an acute psychiatric unit. 15 Ms Xu was admitted to the Caritas Centre that evening. The hospital notes include the following: "Thoughts of killing herself and her son. Is insight less - sees nothing wrong with this." 16 Not surprisingly Ms Xu was characterised as a substantial risk to herself and her son. A diagnosis of psychotic depression was made. She was held as an involuntary patient. DOCS was notified, although it is not apparent what, if anything, was done by that Department to safeguard Stephen. 17 Within three days, that is on 24 February 2003, Ms Xu was discharged. She was said to be much brighter, although still with limited insight into her apparent depression. She said that she was happy to continue taking her medication. 18 The crisis team continued to visit Ms Xu at home. She appeared cheerful and denied thoughts of suicide or harm to Stephen. Ms Xu's mother reported to Dr Wong on 27 February 2003 that her daughter was much improved. 19 On 5 March 2002, Ms Xu was seen by the Psychiatric Registrar of the St Vincent's Hospital, Dr Rogoz. Dr Rogoz gave the following evidence concerning that examination: (T28) "... At that time she was cooperative, pleasant, smiling appropriately, no evidence of agitation in her behaviour. Her speech was normal. She reported her mood being good and there was no evidence of any psychotic symptoms. There was no thought of self harm or suicide. And so my impression was that she had a major depressive episode which was resolving on treatment." 20 Dr Rogoz spoke to members of the crisis team. She and the team assessed Ms Xu as being at "low risk of self harm, suicide or homicide". A management plan was made for Ms Xu. She was to continue with her medication. She should see her general practitioner each week and be examined by the hospital in four weeks time, that is, on 1 April 2003. 21 Ms Xu attended upon her general practitioner the next day. There is the suggestion that her next consultation was cancelled by her doctor, which may or may not be right. However it came about, it is plain that no such consultation took place. Ms Xu did not have the weekly medical supervision which the management plan had contemplated. 22 On 27 March 2003, Ms Xu again presented at the St Vincent's Clinic. Dr Rogoz, however, was not conducting that clinic. The Psychiatric Registrar, who was then seeing patients, recorded that he was unclear why she had presented ahead of schedule. He directed her to continue with the treatment and present to Dr Rogoz on 1 April. Ms Xu returned home. There must be doubt as to whether she was, at that time, taking the medication that had been prescribed. 23 About this time, Ms Xu's mother became ill. She went to stay with a friend at Concord West whilst she recuperated. Ms Xu was therefore alone in the apartment with Stephen, apart from the boarder who came and went.