New South Wales Supreme Court CITATION : R v ROBERTS [2007] NSWSC 1170 HEARING DATE(S) : 12 September 2007 JUDGMENT DATE : 19 October 2007 JUDGMENT OF : Fullerton J DECISION : Not guilty by reason of mental illness. CATCHWORDS : CRIMINAL LAW - Murder - Not guilty due to mental illness - Conditional release - Mental Health Review Tribunal Crimes Act 1900 Criminal Procedure Act 1986 LEGISLATION CITED : Evidence Act 1995 Mental Health Act 1990 Mental Health (Criminal Procedure) Act 1990 PARTIES : Melayna Suzette Roberts (Acc) The Crown FILE NUMBER(S) : SC 2007/2278 COUNSEL : P Menzies QC (Acc) P Barnett (Crown) SOLICITORS : Brennan Tipple Partners (Acc) Director of Public Prosecutions (Crown) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST FULLERTON J FRIDAY 19 OCTOBER 2007 2007/2278 REGINA v MELAYNA SUZETTE ROBERTS JUDGMENT HER HONOUR: The trial proceedings 1 On 12 September 2007, Ms Melayna Suzette Roberts appeared before me for trial. On 1 June 2007, with the consent of the Crown, the trial was set down without a jury pursuant to the provisions of s 132 of the Criminal Procedure Act 1986. When arraigned Ms Roberts entered a plea of not guilty to the murder of Damon Mark Roberts at Gosford on 21 August 2006 on the grounds of mental illness. Damon Roberts was the biological child of Ms Roberts and her estranged husband Mr Rodney Roberts. He was five years of age at the time of his death. The cause of death was certified to be the combined effects of drowning and asphyxia. 2 By her own admission, made formally pursuant to s 184 of the Evidence Act 1995, Ms Roberts acknowledges that her son died on 21 August 2006, that his death was the result of her unlawful act and that her acts were accompanied with an intention to kill. Having regard to the evidence tendered before me I am satisfied that the relevant unlawful act was constituted by Ms Roberts holding her son under water in the bath at the home of her estranged husband and, that in so doing, she intended to kill him. The sole issue in the trial before me was whether Ms Roberts should be acquitted of murder on the grounds of mental illness pursuant to the provisions of s 38 of the Mental Health (Criminal Procedure) Act 1990 or convicted of his manslaughter on the basis that her capacity was substantially impaired in accordance with s 23A of the Crimes Act 1900. 3 No oral evidence was called in the proceedings by either the Crown or the accused. By consent and without objection their respective cases were the subject of documentary tender. 4 Given the nature of the proceedings the critical documents were the reports of the forensic psychiatrists. They comprised the reports of Dr Olav Nielssen, dated 13 March 2007 and 6 September 2007, which were commissioned and tendered by the Crown, the reports of Dr Westmore, dated 29 August 2006 and 4 August 2007, which were commissioned and tendered by the accused and the reports of Dr Rosalie Wilcox, dated 15 April 2007 and 9 September 2007, also tendered by the accused. 5 The three doctors independently came to the view that at the time of Damon's death, Ms Roberts was suffering from a recurrent major depressive illness. This is a recognised mental illness both in clinical practice and in the diagnostic literature. Each of the doctors regarded the illness from which she suffered to be of such severity as to ground either the defence of mental illness under the Mental Health (Criminal Procedure) Act by reason of it being a disease of the mind or a finding of substantial impairment on the basis of it being an abnormality of mind for the purposes of s 23A of the Crimes Act. None of the doctors were prepared to be definitive, or even to speak in terms of probability, in favouring one finding over the other. I am however assisted by Dr Westmore's views to the effect that from a psychiatric perspective the difference between the psychiatric defence under the Mental Health (Criminal Procedure) Act and a finding of substantial impairment under the Crimes Act is reflected in the degree of severity of the illness, together with the way in which the illness impacted on the accused's behaviour, or was otherwise affecting the accused in the particular circumstances in which the crime was committed. That approach necessarily requires a careful analysis of the accused's reported thoughts, feelings and impressions leading up to the commission of the offence which may, by definition, be either reliable or unreliable, together with an analysis of the objective or other forensic evidence that may operate either to corroborate or contradict the accused's account. 6 Each of the three reporting doctors interviewed Ms Roberts. Dr Westmore spoke with her at length on 26 August 2006 at Mulawa prison. In January 2007 she was released to bail. Thereafter she was under Dr Wilcox's care at the Sydney Private Clinic, a private psychiatric hospital where Ms Roberts was receiving treatment. Throughout her admission, until her discharge in April 2007, Dr Wilcox saw her twice a week. In February 2007, Dr Neilssen attended on her at the Sydney Private Clinic for the purposes of reporting to the Director of Public Prosecutions. Each of the doctors were provided with various materials extracted from the prosecution brief of evidence in order to prepare their reports, although I note that since Dr Westmore saw her five days after Damon's death he had access only to the police facts sheet and the statement of Mr Rodney Roberts. Dr Westmore was also provided with a letter from Dr Charters, Ms Roberts' general practitioner, who detailed his various treatments for her recurrent depression in 2003 and 2004. Dr Nielssen was also provided with documents relating to Ms Roberts' transfer from prison to hospital pursuant to s 97 of the Mental Health Act 1990, and with various other medical records relating to her treatment for mental illness in the past. While these documents were not the subject of a separate tender, they are referred to by Dr Nielssen and are of some relevance in revealing a history of depression from which Ms Roberts has suffered for some years. 7 After considering the materials tendered before me at trial, I expressed the tentative view, particularly having regard to the unanimity of opinions expressed by doctors Westmore, Nielssen and Wilcox, that the special verdict of not guilty to murder as provided for under s 38 of the Mental Health (Criminal Procedure) Act was open. The Crown did not seek to persuade me that I should come to any other verdict. The verdict 8 Accordingly, I was satisfied that on the day of her son's death and by reason of mental illness, Ms Roberts' capacity to think rationally was temporarily suspended, depriving her of the capacity to consider the moral or legal consequences of her behaviour. Her defective reasoning enabled her to form a belief that to achieve release from the pain and grief she was experiencing it was a reasonable course of action for her to take her own life and, since she could not consider her son living without her, that it was also right that she take his life as well. I am also satisfied that her mental illness compromised her capacity to see her son as a person in his own right. 9 On 12 September 2007, the day of her acquittal and without dissent from the Crown, Ms Roberts was released pursuant to s 39 of the Mental Health (Criminal Procedure) Act subject to various conditions that were agreed upon by the Crown and Ms Roberts' legal representatives. I ordered that the conditions apply strictly until further order or variation by the Mental Health Review Tribunal. 10 The Mental Health Review Tribunal is a quasi-judicial specialist body currently established under the Mental Health Act 1990. I note that this Act will soon be replaced by the Mental Health Act 2007. The new Act does not appear to significantly affect the functions and powers of the Tribunal with respect to the conduct of hearings in which the Tribunal is empowered to review cases of patients who have been found not guilty of a criminal offence by reason of mental illness. The Tribunal is charged with the statutory task of seeking to achieve a balance between several sets of often competing rights such as, the individual's right to liberty, safety and freedom from unnecessary intervention, the individual's right to treatment, protection and care, and the interests and rights of the community to safety and protection. In ordering Ms Roberts' release I expressed every confidence that Ms Roberts would continue to faithfully submit to the care and supervision of her doctors and to comply with any directions or suggestions of the Tribunal as they review her progress from time to time. I accepted then, and do so unreservedly today, that Ms Roberts poses no threat to the community, including any child, and that with the insight she has gained into her actions she poses no threat to herself. The reasons for the verdict of not guilty by reason of mental illness 11 After entering the verdict of not guilty by reason of mental illness, I indicated that I would publish reasons in support of that finding. The balance of this judgment constitutes those reasons. 12 The materials provided to the reporting doctors, materials that were separately tendered before me, included a statement from Mr Rodney Roberts. I have been greatly assisted by Mr Roberts' detailed account of his observations of his former wife in the weeks leading up to Damon's death including, importantly, his observations of Ms Roberts and the various telephone conversations he had with her before he arrived home at 4:45 pm on 21 August 2006 to find his son and Ms Roberts fully clothed in the bath. I am satisfied that by the time he arrived home his son was deceased but perhaps only by some minutes. After removing his son from the bath Mr Roberts placed a call to "000". I have considered the text of that call. Mr Roberts reported that his son was neither conscious nor breathing and that he thought his former wife had drowned their son and had attempted to take her own life. At approximately 5:00 pm police and ambulance officers arrived. 13 The statements of the attending police were also tendered in the proceedings. They are of relevance as they set out the conversations they had with Ms Roberts upon their arrival at Mr Roberts' home and their observations of her attitude and demeanour after she was taken into custody. 14 A paediatric autopsy report prepared by Dr Kevin Patrick and dated 14 December 2006 was tendered together with an expert certificate from Dr William Allender, a forensic scientist in medicinal chemistry. In so far as Dr Patrick's report is concerned, his examination of the deceased child revealed no external injuries that were in his view inconsistent with having been sustained during the course of resuscitation. That said, given that Ms Roberts told police that she held her son under the water and that she told Mr Roberts that the child struggled to an extent, I am satisfied that despite the fact that the boy was found beneath the water cradled in his mother's arms, that the bruising on his upper arms is consistent with Ms Roberts applying some force to his upper body to ensure that he remained submerged beneath the water. My view is reinforced by the fact that the toxicology report was negative for drugs save for very low levels of Promethazine (an anti-histamine medication), which in Dr Patrick's view would not have been productive of any adverse effects. 15 Mr Roberts supplied police with a note addressed to him from Ms Roberts that had been left with other belongings of hers on the stairs leading to the bathroom in his home. Police found another note addressed to "Dearest Heavenly Father" at Ms Roberts' residence. The content of both notes are consistent with being written before Damon was drowned and reflect Ms Roberts' intention to take her own life and that of her child. Her intentions were repeated to both her former husband and investigating police after the death of her son. Otherwise, the content of the notes revealed little about whether she was suffering from a mental illness of such severity as to attract the provisions of s 38 of the Mental Health (Criminal Procedure) Act, or whether her mental capacity was compromised such as to reduce her culpability for murder to that of manslaughter. On the other hand, in my opinion her religious beliefs, enmeshed with her illness, appear to have encouraged her to think that by taking her life and that of her son they would together find a greater peace and ultimately their resurrection. It is not for me to pass any comment on her religious convictions and I do not. I am simply recording the fact that her desire for peace and a permanent refuge from her pain and grief was imposed upon her son and, that in so doing, she deprived him of his life. I am satisfied that her inability to see her son as a separate psychological and physical entity was a manifestation of her illness. This is reflected in the views of each of the psychiatrists. Past psychiatric history 16 Ms Roberts was first treated by a mental health professional in 1994 after she was a victim of a sexual assault. Her next contact followed Damon's birth in 2001, at that time in the context of marital tensions and the fact that Damon suffered illness as a small child. She reported three or four depressive episodes after that time, on each occasion in the context of her recurrently troubled marriage. She was treated with anti-depressant and/or anti-psychotic medication on these occasions. She resumed anti-depressant medication on 18 August 2006, three days before Damon's death. I shall refer to the significance of this later in the judgment. 17 In October 2004, Ms Roberts' marriage was again under considerable stress although both Mr and Ms Roberts reconciled at that time largely, it would seem, in the interests of their young son. Within six months of that reconciliation the marriage again faltered. 18 On 21 August 2005, after a number of failed attempts, Ms Roberts' mother committed suicide. Whether her mother's suicide was the catalyst for her marriage ultimately breaking down is not entirely clear. What is apparent, however, is that the death of Ms Roberts' mother was a trigger event for the fresh onset of her daughter's depression and other manifestations of grief. Ms Roberts saw her mother as the person who she described as her primary support person. In the weeks following her mother's death the marriage between Mr and Ms Roberts finally ended although they continued to work together in the family business and share the parenting of Damon. 19 Between Easter and June 2006, Ms Roberts made concerted efforts to address her fragile emotional state and her debilitated physical state. It was during this three-month period that, with assistance, she managed to wean herself off anti-depressive medication. However, in June 2006 she suffered a fresh onset of symptoms of depression in the form of disturbed sleep, appetite loss, fluctuating energy levels and social withdrawal. She told Dr Westmore that at this time she managed to get through each day but with increasing difficulty as the anniversary of her mother's death approached. She saw this event as a "big hurdle" she had to get over. I am satisfied that in an effort to try to cope with her grief and her emotional pain at the loss of her marriage in circumstances where she was also feeling an increasing distance from her immediate family, and with the anniversary of her mother's death approaching, she again sought psychiatric assistance. She saw Dr Bartholemusz for grief counselling on three occasions in the six weeks before Damon's death. 20 On Friday, 18 August 2006, her general practitioner prescribed the anti-depressants Lexapro and Xanax (a medication to treat anxiety and depression). Her doctor advised that it would be a matter of days to a week before the medication took effect and, for this reason, she was encouraged to contact her former husband and ask for his assistance and support by making himself available to her and their son in the days leading up to the anniversary of her mother's death and on that particular day. She asked him to come and stay with her but in the result agreed that she and Damon would stay with Mr Roberts in accommodation he rented in Gosford. 21 Mr Roberts reported that Ms Roberts was emotionally drained and in a variable mood when in his company and that on both the evening of Friday 18 August and Saturday 19 August she took sleeping tablets to assist her to sleep. He said they spoke at length about her grief and Ms Roberts "being a lost soul". 22 On Monday, 21 August, the first anniversary of the death of Ms Roberts' mother, Mr Roberts understood that she was due to attend the cemetery with her father and sisters during the morning. He had agreed to take a half-day off to be with her to support her upon her return from the cemetery. Ms Roberts' father participated in a lengthy recorded interview on 29 August 2006 where he detailed, amongst other matters, his observations of his daughter during the family gathering at the cemetery. He said that his daughter said that she felt very drained and flat. On the other hand, he said there was nothing in her demeanour or behaviour that gave any indication that she was considering taking her own life or her son's life. He did say, however, that she refused the invitation to join with her family for lunch preferring, she said, to go home and await the arrival of her former husband. When Dr Westmore asked her whether she was upset at the cemetery, she said: "In a different way to now. I was just numb. The last 12 months have been numb and surreal. I have gotten through day to day stuff with Damon, I haven't taken on extra stuff. Every day was hard. It has just been survival at the end of each day." She told Dr Wilcox that upon leaving her father and sister after praying at her mother's grave she went back to her house feeling "sad, heavy, overwhelmed". 23 Mr Roberts spoke to Ms Roberts just before 3:00 pm to inform her that he was waiting on an email before he could leave his place of work and meet her at his home. She told him that she was at the Gosford waterfront with Damon, kicking the soccer ball. When referring to the 3:00 pm telephone call, Mr Roberts described her as sounding flat, discouraged and generally in a depressed state. Ms Roberts informed Dr Wilcox that as she was leaving the waterfront she remembered thinking that she and Damon would have a rest, and that whilst the drive home was surreal, she was able to recall a number of discrete actions on her part. In particular, she recalled going to her home to collect her son's comfort blanket and, whilst there, writing the letter addressed to "Dear God" referred to earlier. She then said that she drove to Mr Roberts' home and that it was upon arrival there, and she thinks sometime before she spoke to her husband by telephone at 4:00 pm, that she decided she could not go on with her life. 24 She said that it was during this time that she took four Xanax tablets on the basis that because she missed her morning dose and had been prescribed two tablets twice a day that she would take the morning and evening dose at the same time. She said that at this time she also gave her son 7.5 ml of a Phenergan type medication. She claimed that the medication was not given to sedate her son but because he had been bitten by an ant at the park and that he was allergic to ants. Whilst this may well be the case, I note that the medication Promethazine identified in Damon's blood on autopsy also has the potential to produce some drowsiness. This may go some further distance in explaining how she was able to persuade her son to join her in the bath fully clothed and to effectively subdue what must have been his natural resistance to being submerged in the bath water to the point of asphyxiation. 25 She said that after her son was playing for a time at his father's home they held one another and said a prayer before she told him that they were going to have a bath together. She said that while she ran the bath she resumed praying with Damon and told him that they were going to go to sleep and that they would wake up with Mimi (the child's grandmother and her mother) who was with Jesus. She said that she stepped into the bath with the child in her arms and that they laid down together with the child cuddling into her with his blanket. She said that he turned a couple of times to get breath but eventually surrendered. 26 When Mr Roberts arrived home at 4:45 pm, he was unable to find his former wife and child. He thought they must have returned to the waterfront. In the process of checking whether his son's bike was in the laundry he noticed the note that she had left him on the stairs. The note read: "Dearest Rod, Please know that GOD LOVES YOU and so do we. I just wish it was different. Love always Melayna and Damon." 27 He then heard water splashing and thought that his former wife and his child had decided to take a bath and that the splashing water was his son's way of letting him know where he was. He then walked into the bathroom and saw his wife lying on her left side facing the wall whilst his son was lying on his right side facing her. He said there wasn't a lot of water on the floor, that Damon's head was under the water and she had both her arms wrapped around him. When he pulled his deceased child from the bath he noticed that Ms Roberts' face was red and that she was sobbing. 28 She reported to Dr Wilcox that if her husband had not arrived she would have taken her own life. She also acknowledged that it would have been difficult for her to drown herself in the bath and that she had no other means at hand to effect her suicide. She was also unable to explain why she had taken her medication if it was her intention to suicide. 29 In this connection Dr Allender was firmly of the view that the dose of 4 mg of Xanax, a short-acting anti-depressant medication, was not excessive notwithstanding the fact that she had taken in effect a double dose. In Dr Wilcox's view, the fact that she took her medication at all at this time is a further indication of the extent of her disassociation given that very soon after taking the drugs she drowned her son and had the expressed intention of then taking her own life. 30 The child was removed from Mr Roberts' home by ambulance officers and Ms Roberts was taken into custody. Whilst in police custody Constable Joanne Plummer spoke with Ms Roberts at about 7:00 pm. She observed her to be rational and articulate in her conversation although softly spoken and subdued. She was asked how she was feeling and said words to the following effect: "It wasn't meant to be like this. I was meant to go too. I couldn't bear knowing he would live his life without a mother. I know what its like, it's a year today my mother passed away. Children shouldn't have to live without their mothers, its too sad… I went to visit mum today at Palmdale, it shouldn't be like this. I was meant to go too, just off to sleep." 31 The events leading up to the death of Damon Roberts, including Ms Roberts' particular vulnerability to the onset of a major depressive illness, resulted in the tragic loss of a young life – the more so because it was at the hands of his mother. I have no doubt that she has felt and will continue to feel her own personal sense of responsibility for her actions and that she is deeply remorseful for the pain she has caused Damon's father. That said, it is appropriate that I emphasise that Ms Roberts has been acquitted of any criminal responsibility for his death by reason of her mental illness. ********** 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. 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