New South Wales Supreme Court CITATION : Regina v Nguyen [2009] NSWSC 918 HEARING DATE(S) : 24/08/09, 25/08/09, 26/08/09 JUDGMENT DATE : 10 September 2009 JUDGMENT OF : Hoeben J DECISION : Accused not guilty of murder, but guilty of manslaughter on each count. CATCHWORDS : Criminal law - indictment charging two acts of murder - trial by judge alone - defence of mental illness - background evidence - psychiatric opinion - whether accused mentally ill under McNaughten rule or whether substantially impaired by an abnormality of the mind under s 23A of the Crimes Act 1900 - importance of letters left by accused. Crimes Act 1900 LEGISLATION CITED : Criminal Procedure Act 1986 Mental Health (Forensic Provisions) Act 1990 CATEGORY : Principal judgment The King v Porter (1933) 55 CLR 182 CASES CITED : R v Jennings [2005] NSWSC 789 R v McNaughten (1843) 8 ER 718 PARTIES : Regina Truong Thi Nguyen FILE NUMBER(S) : SC 2008/19053001 COUNSEL : Ms M Cunneen SC - Crown Mr RC Pontello - Accused SOLICITORS : Solicitor for Public Prosecutions - Crown Solicitor for Legal Aid Commission of NSW - Accused IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOEBEN J Thursday 10 September 2009 2008/19053001 – REGINA v Truong Thi NGUYEN JUDGMENT 1 HIS HONOUR: Nature of Proceedings The accused is indicted on a charge of murdering Joshua Bui on 19 February 2008 and of murdering Jade Bui on that same date. Pursuant to s 132(1) of the Criminal Procedure Act 1986 the accused elected to be tried by judge alone in relation to those charges. 2 Upon arraignment, the accused pleaded not guilty to both charges. 3 The charges arise from the killing by the accused of her two children on 19 February 2008. Joshua was born in March 2003 and was therefore almost five at the time of his death. Jade was born in February 2005 and was almost three. Although the precise cause of their deaths could not be ascertained as a result of the post mortem, the most likely cause in each case was asphyxiation (i.e. suffocation). This was confirmed in histories given by the accused to psychiatrists who examined her. 4 There was little dispute about the facts. By consent the Crown case statement, medical reports from psychiatrists, statements from witnesses and a copy photograph were placed before the Court. 5 The basis for the accused's plea of not guilty is mental illness under s 38 Mental Health (Forensic Provisions) Act 1990. In other words, the accused relies upon mental illness in the McNaughten sense. The accused submits that the appropriate verdict is "not guilty of murder on the grounds of mental illness". The Crown contends that this is a case to which s 23A of the Crimes Act 1900 applies and that the accused is guilty of manslaughter in that at the time of the offences she was suffering substantial impairment by abnormality of the mind. Accordingly, the real issue litigated has been the mental condition of the accused at the time of the killing of her children. 6 Because of the agreement as to the facts, the trial lasted only three days. The oral evidence comprised that of the accused's husband and relatives and friends of the accused. Three psychiatrists also gave evidence. Dr Allnutt and Dr Wilcox were called by the Crown and Dr Nielssen was called by the accused. The accused did not give evidence. Factual background 7 Except as otherwise indicated, I find that the following facts have been established. 8 The accused was born in June 1978. She met her husband Thuy Bui in 1998 and they married in August of that year. Her parents did not approve of her husband and they had a quiet marriage before a Magistrate. They later had a formal wedding in 2001. At the time that the accused met her husband she was studying at the University of Western Sydney. After the marriage she ceased those studies and commenced fulltime employment. 9 During the first year of their marriage, they lived with her parents and then purchased their own home in Canley Vale. Subsequently, they sold that property and at the time of the death of the children they were living in rented accommodation at Canley Vale. 10 The accused had her first child, Joshua, in March 2003. Her recollection is that this was a normal pregnancy and that she was happy when Joshua was born. Joshua was a difficult baby and required a lot of attention. The accused felt that she received little support from her husband in this regard. 11 Her second child, Jade, was born in 2005. The accused found she could not work during this pregnancy. Once again the accused felt that her husband did not provide much support for her after Jade was born. 12 Thereafter, the accused remained at home looking after both children while her husband went to work. The accused said that she was happy being a mother but at times felt that she was not coping because of the demands of looking after two children and because she was receiving little assistance from her husband. She said that she told her husband about her difficulties, but he stated that she complained too much. 13 By early 2007, the relationship between the accused and her husband had deteriorated. The accused thought that he had lost interest in her. He was staying up late at night watching TV and used to sleep in a separate bed. A little later he started going out on his own at night and would not tell her where he was going. 14 In January/February 2008 the accused noticed that her husband began to go out more frequently. He would come back late and sometimes he did not have dinner. He was more irritable. The accused started to suspect that he was seeing another woman. At times she considered following him but with two small children she was unable to do so. 15 It was at about this time that the accused found it more difficult to cope. She noticed that her husband was not spending much time with the children. He continued to sleep in a different bed. She felt "miserable" with her mood fluctuating along with her energy. She noted that her mood fluctuated depending on her perception of her husband, i.e. when she felt that he was caring for her she noticed her energy levels improved, otherwise they became diminished. She started waking up in the morning feeling a lack of energy. She noticed that her appetite diminished and she lost some weight. There was a change in her sleep patterns and she would be awake at night. She cried more frequently and her motivation fluctuated. She had to force herself to do things. She felt sad and unable to enjoy things. Nevertheless, she was able to look after the children and attend to her housework. 16 The accused returned to work in the second half of 2007. She was working six days a week, eight hours a day, as a nail artist. The children at that stage had been put into childcare. The accused thought that she was coping at work, was able to concentrate adequately and that her interpersonal relationships at work were adequate. Her performance at work was apparently acceptable. 17 On 14 February 2008 the accused observed her husband to come home from work, take a shower and take flowers out of their old car and put them into the new car. Initially she thought the flowers were for her but then he left home with the new car. That night he came home late. She tried to talk to him that night but he would not respond. 18 Shortly thereafter the accused said that she found sea sand in her husband's shoes and at the front door. She went to check his car and found that there was sand in both the front seats. She concluded that he had gone out with a woman to the beach that night. She did not confront him about this but said that she felt "very sad". She did not talk to her family about her difficulties with her husband, but evidence from family members confirmed that in the months leading up to the death of the children, the accused was very subdued and quiet. 19 On the weekend before the death of the children, the accused obtained a voice-activated tape recorder from her father and placed it in her husband's car. When she retrieved the tape recorder from the car, the accused believed she could hear her husband talking and laughing with another woman. This seems to have occurred on the evening of Sunday, 17 February 2008. 20 The accused said that she became upset and confronted her husband, who was lying on his bed. She accused him of being unfaithful to her. She was so upset that she broke some of their wedding photos. Her husband responded by telling her that their relationship was over and that he was going to see her parents and tell them. The accused told him to leave her parents out of it. 21 The other events on that Sunday night are difficult to determine since the accused gave slightly different versions to the psychiatrists who examined her. What is clear, however, is that at some point there was a physical confrontation between the accused and her husband, in the course of which she pushed him and he slapped her with some considerable force. A childcare worker, Ms Boechat, observed a cut on the accused's cheek the following morning. 22 The accused did not sleep that night. She felt that her husband had abandoned her. She did not know what to do or how to get out of the problem. 23 On Monday, 18 February the accused took Jade to day care and Joshua to school. During the afternoon she contacted her brother-in-law and asked him to help her follow her husband that evening. She wanted to confront the girl and her husband together. Her brother-in-law agreed to help her. On the way home she stopped at the supermarket and bought some rat poison. 24 That evening her husband returned from work at 6pm and took a shower. While he was in the shower, the accused took her children and met with her brother-in-law who was waiting outside. When her husband drove off, they followed. After about ten minutes they lost sight of his vehicle. After unsuccessfully searching for the vehicle for some time, they returned home. 25 Because the accused did not give evidence, the only evidence which the Court has about her state of mind at this time comes from the histories which she gave to psychiatrists who examined her and from three letters which she left. 26 In point of time, the first version of events was given to Dr Nielssen in consultations which he had with the accused on 5 March and 26 June 2008. Dr Nielssen recorded the following in relation to the Monday and Tuesday: "Ms Nguyen said that she was very upset and they slept in separate rooms that night. She said that the next morning she spoke to her husband again and told him that she did not want to end the relationship. She said that he replied that he was sorry for the children but had to leave as he said he did not want her anymore. She said she asked him how long the affair had been going on, to which he replied that she didn't need to know. She said that when she asked him if he still loved her he did not answer and walked out of the room and left for work. Ms Nguyen said that her husband was "a very determined man" and after that conversation she was certain that he had made up his mind to leave. She said that after he went to work that day she thought "I don't want this life" and said that she decided to commit suicide. She said "all I could think was he didn't want me … I can't go on without him because I saw a lot of families broken… I didn't believe it would happen to me". When asked why she had to kill the children as well, she said she did not believe her husband loved the children and that she did not want to leave them behind without her. She confirmed that she made up the mixture found in the blender and said that she gave the children a mixture of the poison and medication to make them sleep. She said "I took their breath … I covered their nose … I told the children a bit of hurt and then over". Ms Nguyen denied killing the children as a way of expressing her anger towards her husband and said that she did not believe he loved the children as much as she did. Ms Nguyen said that she took a combination of drugs in an attempt to commit suicide and said when that did not work she cut her arms and tried to hang herself. She said that she did not remember when her husband came home but understands he found her and called an ambulance. She said that her first memory was in the hospital." 27 Dr Wilcox saw the accused on 23 February 2009. She recorded the following: "Later that day she decided to try and confront her husband in the presence of the woman she believed he was seeing and asked her brother-in-law to take her in his car so that she could try and follow her husband. She said that she wanted to talk to the lady. She was unsuccessful in her attempt to confront her husband and said that he knew that he was being followed and he got away but she did see him pick up a lady. After following her husband she asked her brother-in-law to drop her off at home and when her husband returned she said that she told him that she forgave him and because of the sake of the children she begged him to stay. She said that he told her that he did not love her anymore and he asked her to leave and he said that he was sorry for the children and she again mentioned that he said he did not love her anymore. Ms Nguyen told me that she decided that night that she was going to die and at the time she believed that her husband did not love the children because he had chosen the other woman. I observed that at this stage in the interview she became quite visibly upset and teary. She said that she had thought of leaving her husband and taking the children but then the children would be without their father. She said that when she made up her mind on the Monday night she decided that when she died that she would also have to take her children's lives because she could not leave her children without a father. Her whole focus was on the fact that he was leaving. She told me that she felt scared that if she left her husband and had to look after the children on her own she would not be able to control her anger and could possibly harm her children and they would suffer and she decided that if she took their life she would stop them from ever having to suffer. She seemed to be unable to comprehend that her children would have still had a father when I pointed out to her that if she had died and had not taken her children with her it would have been the responsibility of her husband as the sole parent to care for the children. Ms Nguyen said that she divided the rat poison she had purchased the day before into three and mixed it up in a blender with sugar and water and gave Joshua some to drink. He fell asleep and she took some of the poison herself after he fell asleep. She recalled that it tasted terrible and said after she took the poison she lay between her two children and fell asleep. Prior to taking the poison she said she wrote three notes; one was to her husband, one was to her mother and the third note was to the Police. She said she took the poison around 9 o'clock in the morning and her husband was not expected home until 6pm in the evening and she believed that she would be dead before he arrived home. She said she became concerned that the poison may not work and told me that she covered her daughter Jade while she was lying with a pillow until she suffocated and then placed Jade in her bed. When Joshua woke up she covered his mouth with her hand until he could no longer breathe. Ms Nguyen said she did not feel anything when asked if she realised she was still alive and her children were deceased. She said she then took a blade from a haircutter and cut both wrists and inside both elbows. She denied that her actions were in any way driven by a desire to punish her husband. She again told me that she believed that she could not live without him however she could not explain why she felt she could not live without him. She did not know whether it was because she loved him so much or that she felt that she did not have the coping skills to manage on her own. She told me that she would now rather have her children and have no husband but at that time said she could not see that this would be a viable option. While waiting for the cuts to have an effect she said she fell asleep and when she woke again and found she was still alive she said she tried to hang herself with some string that she placed over a bar above the door and when this did not work she decided to take whatever pills she could find in the house and this included the pain killer Panadol and some medication that her husband was taking at the time; she was not sure what medication she took." 28 Dr Allnutt saw the accused on 22 and 29 July 2009. He recorded the following history: "Returning home she found her husband back in the house; she put her children to bed and she climbed into bed with her husband; she hugged him and apologised, she asked him whether for the sake of the children they could start again, she told him that the children were lonely when he was not around; he said he was sorry for the children but their relationship was over; she felt hopeless, she asked him why he had said to her when they first met that he would love her forever; her husband did not answer; she knew he was crying and she put a tissue box beside him; she asked him if he was in love with the woman he was seeing and how long he had seen her for; he stated there was no need for her to know; he would not engage in conversation with her. She sat for a while and then went back to bed with her children; at that time she thought it certain that he was going to leave; she felt helpless, she stated "I tried my best to solve the problem but he just never care", "I felt that he chose that woman instead of my children"; she was unable to sleep, she was thinking "if he didn't want me then we have to go", she began to think about killing herself and the children; she did not want her children to live without a father; she realised that she and her husband would have to separate; she said that she had seen many families break up and it was the children who had suffered; at the time she believed the children were dependent on her; if her husband went with another lady then they would not have a father; she said at the time she would not accept his going to another woman; she could not accept a husband who had betrayed her; at the time she felt that life was worthless in general because the person she trusted had betrayed her; she thought her husband did not want them (she and her children) because when she had asked him whether or not they could stay together for the sake of the children he had said no. The next morning she prepared the poison; she put it in a blender, mixed with sugar; she felt that the sugar might make it easier for the children to swallow it; she felt that life was "sad"; she was thinking "get out of this world"; about the children she was thinking "I didn't want them to suffer, this world was lies and betrayal", "I couldn't think anything more". She gave Joshua the poison and told him "it is just a little bit of hurt and we are out of this world, mummy will be there"; Joshua refused to take it, she put him down to sleep. Jade woke up and she put a pillow on Jade's face, she was not sure how long for, all she was thinking was "just die", "it is too painful to live"; Jade stopped breathing; she stated "I told her I'd be there for her"; she put jade back to bed. Joshua woke up, she covered his nose with her hand and he stopped breathing; she told him "just a little bit of hurt and it be over". She put both of them in the bed and took the poison herself and then laid down beside them; she was thinking she was going to die; she waited and nothing happened; she woke up and took a blade and cut her wrists and waited and nothing happened; she cut herself again and nothing happened; she then tried to hang herself, she put a loop of green rope around the "door bar" from the clothes line; she hung herself but the door bar broke; she then looked for something to stab herself with; she was unable to find a pointy knife; she then took all the tablets she could find in the house and laid between the children, nothing happened; she then started vomiting; subsequently following that she closed all the doors and switched off the gas; she went back to lie between her children; she could not recall what happened after that. … On the day prior to the alleged offence she had thoughts such as "there is no-one for me to lean on"; "the only thing I have is gone" meaning the "love of my husband"; she felt like her life was worthless; while she had thoughts of her children she thought "I can't take their lives, they are still so innocent". On the day of the alleged offence when her husband said "No" when she requested that they start again; she thought "there is no hope"; she realised they would have to separate; she had in the past had the experience of other families separating with ongoing conflicts between the parents; she said she did not want her children to experience that; she also thought that one day she might "get crazy" and "put anger" on her children and in this sense "they might suffer"; she thought she needed to get out of this world, she thought the only way to do this was to die; she wanted to kill her children because she did not want them to suffer; she thought at the time "life is very cruel"; she thought even though she had tried her best to be a good person and a wife all she got was betrayal and lies; at the time she saw killing herself and the children as a way to escape from "a cruel life"; at the time she believed her children were going to have a "cruel life" because of "what I've been experienced", she said that the minute her husband said "sorry for the children" and he had to get out "it makes me feel pain for the children and their loneliness"; she thought he would abandon the children because of what he had said; a few days prior he had been yelling at the children because he was going to be late which meant to her at the time that the children were not his first priority." 29 On 19 February 2008 the accused's husband arrived home from work at around 6.15pm. He noticed a trail of blood droplets on the kitchen floor leading into the master bedroom. Inside the master bedroom he saw the accused lying on the bed motionless. Lying on the bed to her right was the child Jade and to her left was the child Joshua. Both children were also motionless. All three were partially covered by a doona. 30 He immediately called 000 and then ran to seek help from a neighbour. While they were waiting for the ambulance the neighbour attempted CPR on the two children and he gave the accused mouth-to-mouth resuscitation. The neighbour noted that the two children were very cold, blue around the face, and failed to respond to CPR. 31 Ambulance officers arrived shortly thereafter. They noted that both children showed no signs of life. The ambulance officers then turned their attention to the accused. They noted that she was conscious and breathing, but not responsive. They noted that the accused had lacerations to both wrists and both inner elbows. The accused was taken to Liverpool Hospital. Thereafter the accused has remained in custody under psychiatric supervision in case she tried to commit suicide. She has been diagnosed as suffering from a severe depression. 32 The police were called and a crime scene was established. Numerous items of interests were photographed and taken as exhibits. A photograph tendered at trial (exhibit F) shows a bloodstained towel and some green nylon rope. 33 Three handwritten letters were located in a top drawer of a bedside table by the side of the bed in the master bedroom. One letter was written in English as follows: "19/2/08 To whom it may concern I Nguyen, Thi Truong. I am going and taking my kids with me. However, all my life is a drama. My husband created it and now he made me miserable. If I and my kids are going the only thing I want from his share from being a wife for many years – is every cost of my funeral and my kids. This is my only wish. However I want my parents and family in charge of the funeral. Thankyou. I only want to go peacefully. Thankyou again. Thi Truong Nguyen." 34 A second letter written in Vietnamese was as follows: "Dad and mum This is the result of me not listening to you, I don't want to die and leave my children lonely in this life but the reality is I do not want to bring them into this life and then have to take their lives away by my own hands, but dear parents I cannot live in this life. If I continue living perhaps until certain days I can not control myself and I have to pour everything to my two children and they are the ones who have to suffer. Please forgive me. Don't be sad because of me lets treat this as a way to release me and my children. I know mum has suffered a lot. I'm sorry mummy, don't think this is a big loss because I am a stubborn daughter. Just think this a life path. Signed daughter of dad and mum Younger sister of my sister Older sister of my younger brother and sister Please bury my children and myself close to each other, do not cremate." 35 A third letter, also written in Vietnamese was as follows: "Darling You have taken me into this life today and you yourself have taken away my life. I only wish to have a lover who truly loves me, think of me and concern about me, understand me a little bit. But eventually it has never been fulfilled. Probably its my destiny, being husband and wife for a number of years [you have been so cruel to me] [you have treated me badly while I have sacrificed all just for you]. Whatever I have done was for you because of that, how frustrated I have been suffered! Probably, I might not control myself one day. This is the result of what is happening today because of your coolness to me. If you didn't love me why did you live with me. I don't want to take away my children's lives and I also don't want them to live lonely by themselves. Do you know that they have been sad and cried do you know why, because they are not close to their father who used to love them. Life without love (unable to be translated) I have to go away because I don't want to witness the situation in which my husband betrayed me for living with another person. I take away my own life so I don't want to witness the situation in which my children live lonely by themselves and the situation which my husband who is in love with another person. I have been given two wonderful children by God. I don't want to take away their lives because I am the one who have brought them into this life. However what is this life. Living without love, to me life is just only selfishness and betrayal. Let my children and myself leave in peace. This is the last words of a person who in fact is a wife but not a wife. Truong." (The words which have been bracketed represent alternative translations.) 36 In view of the evidence given by the accused's husband at the trial, I have concluded that in the days leading up to the death of the children, he was seeing another woman. Accordingly, the accused's suspicions in that regard were well founded and were not delusional. Psychiatric Opinion 37 In his report of 25 July 2008 Dr Nielssen expressed the following opinion: "The diagnosis of major depression is made on the basis of Ms Nguyen's account of the advent of severe depression with suicidal thoughts after her husband told her that he intended to end the marriage, the information in her sister's statements suggesting that she had been depressed for at least a year prior to her arrest and her presentation during the subsequent interviews when she appeared severely depressed. Ms Nguyen did not report symptoms of depression prior to the news of her husband's affairs. However, at the time of the recent interviews she had not recovered from depression to the extent that she was able to recognise that she had been depressed. Moreover, Ms Nguyen is from a particularly stoical cultural background in which depressed mood is often not acknowledged. Her cultural background may also be relevant to the way she responded to the loss of face associated with marital breakdown. The history elicited was that she became severely depressed after the confirmation of her husband's affair and his announcement that he intended to leave her and it is clear that she planned to end her life over at least two days. Her decision to kill her children was based on the belief arising from her state of severe depression that her husband did not love the children and that it would be better for them if they were also dead. Ms Nguyen did not have a psychotic illness in the sense that she had a delusional belief about the health of the children or about her own safety. However, depression itself is considered to be a psychotic illness because of the abnormal perception of events that accompanies severe depression often to the extent that suicide seems a rational course of action and also that a person's dependants would also be better off dead. Hence I believe that Ms Nguyen has the defence of mental illness open to her as she had a disease of the mind in the form of a severe form of depression of sudden onset, on the background of a longstanding state of depression of lesser severity. The illness gave rise to a defect of reason in the form of her perception that life was not worth living if her husband left her and that he did not love the children, and the belief that committing suicide was a rational course of action. In her severely depressed state she was unable to reason with any sense of composure about the likely consequences of her actions and did not recognise that her actions were morally wrong as in her depressed state she believed that what she was doing was in the best interests of the children. In my opinion Ms Nguyen also has the defence of substantial impairment by abnormality of mind open to her, as she had an underlying condition in the form of a depressive illness that became very severe in response to her belief that her marriage was over. Her severely depressed state affected her perception of events as she interpreted events from the perspective of a person who is severely depressed." 38 In his evidence at trial Dr Nielssen said that the letters left by the accused did not lead him to change his opinion. He said it was not unusual in the case of severe depression for people to feel guilty and that such persons had a greatly amplified sense of having wronged people. The fact that the accused may have realised that her parents would regard what she was doing as wrong did not lead Dr Nielssen to alter his opinion. 39 He said that at the time of the death of the children, the accused was unable to appreciate that her actions were morally wrong because she genuinely believed that what she was doing was in the best interests of the children. Dr Nielssen explained that he had used the word "psychosis" in his report to mean the loss of contact with reality experienced by the accused and to explain her wrong belief that the right thing to do was to commit suicide and take her children with her. 40 Under cross-examination Dr Nielssen was prepared to agree that the depression experienced by the accused following the death of her children may have been different in quality to that which she experienced before but he did not accept that it was more severe. 41 Under cross-examination Dr Nielssen said that in his report he was using the term "psychosis" in its colloquial sense rather than as it is used in the various DSM categories. He was using the term "psychosis" to describe what he regarded as a "false state of awareness" in the accused. 42 Dr Nielssen set out the basis for his conclusion as follows: "But there is a disease of the mind, a defect of reasoning in the form of a person's perception of events and from that person's perception of events the person believes that their actions are the right thing to do in the circumstances. That is the reason I believe that the insanity defence is available to Miss Nguyen, notwithstanding any splitting hairs over the exact diagnosis." (T.74.37) 43 In her report of 8 March 2009 Dr Wilcox expressed her opinion as follows: "There was no evidence that Ms Nguyen's actions occurred due to the presence of a psychotic condition. She did not report the presence of either delusions or hallucinations. In view of the circumstances and the evidence of a degree of planning I considered whether her actions were driven by a desire to seek revenge on her husband for having an affair. In the note she wrote to her husband she blamed him for her actions by stating that it was a result of his cruelness to her. She told him that she did not want to take her children's lives but did not want them to be fatherless. Although revenge could be a motive and cannot be totally discarded, I believe that it is more probable that her actions occurred due to a combination of shame and despair and that she was suffering from an underlying depressive disorder that affected her judgment and capacity to think rationally. I believe Ms Nguyen would have a defence of substantial impairment available because when she took the life of her two young children her capacity to control her actions was substantially impaired by an abnormality of the mind that arose out of an acute exacerbation of her underlying depressive disorder that occurred as a result of discovering that her husband had been having an extramarital affair and planned to leave her. Dr Nielssen came to the conclusion that Ms Nguyen also had a defence of mental illness open to her. I believe in order to consider the use of the mental illness defence one would have to accept that although Ms Nguyen was not psychotic and therefore had not lost contact with reality her depressive disorder at the time of the alleged offence was so severe that it affected her perception of her situation and her reasoning to such an extent that she believed her life was not worth living and that by taking her children's lives she was saving them from further suffering. Whether she believed at the time that suicide was a rational act and that it was not an act of revenge and whether she had the capacity to recognise that her actions were morally wrong and were in the best interests of the children is I believe for the jury to decide." 44 In her oral evidence, Dr Wilcox said: "A. That was something that I had some difficulty coming to terms with. I felt that overall, because she wasn't psychotic, that she did have the capacity to judge the difference between right and wrong." (T.7.19) Dr Wilcox considered that the depression experienced by the accused after the death of her children was more severe and of a different quality and nature to that which she had experienced before their deaths. 45 On the issue of whether depression, even severe depression, was a psychosis Dr Wilcox said: "A. I don't agree with the use of that term psychotic there because, as I said earlier, there is a separate condition called psychotic depression and using that term there I think he is meaning that, like he says, their perception is affected. But the true meaning of the word psychotic is that the person has lost contact with reality, which means whereas people can still know the consequences of their actions, but where their perception is distorted by depression they see things are a lot worse and they see that the consequences are that people would be better off without them, but they still know what they are doing and they still haven't lost that concept of the difference between real and not real, which is what psychotic really means, whether they still have the capacity to understand reality." (T.9.31) 46 Dr Allnutt expressed in his opinion in his letter of 17 August 2009 as follows: "Overall the evidence supports the conclusion that at the material time that the alleged offence occurred she was suffering "an underlying condition", that being, a major depressive disorder; in addition to this, she could be regarded as suffering from a "disease of the mind"; depressive disorder would also be regarded with most psychiatrists in meeting the necessary legal criteria to be regarded as a "disease of the mind" and "underlying condition". Substantial Impairment As a consequence of her depression, the Defendant had developed cognitive distortions, that is, because of her depressive perspective, she had an exaggerated and distorted view of her and her children's circumstances, and catastrophized what their future might be if they were left alone with their father. I did not obtain adequate information to conclude that the distorted thoughts were of a severity that they would be regarded as delusional, that is, I do not believe that she developed a psychotic depression; but nonetheless it would be reasonable to be of the view that as a result of her cognitive distortions she manifested an "abnormality of mind". She believed (realistically) that her husband was intending to leave her and abandon her; she believed in an exaggerated sense that her husband did not have the interests of the children at heart, that if she killed herself her children would be without the support of her husband, that if she remained alive she could cause her children some emotional pain, that killing them would stop that suffering; inherent in this was irrational thinking (for example, needing to kill her children to avoid harming them in some way later) and exaggeration (that her children would suffer badly living with her husband in another relationship). It is notable that she made multiple attempts to commit suicide using different methods and persisted with suicidal thoughts for a significant period of time after the alleged offence, which suggests relatively strong intent to commit suicide at the time. It is also notable that she has been consistent in explaining her motive as saving her children from suffering rather than "revenge" or "spite"; while revenge or anger likely formed part of her motive and emotional state at the material time, the evidence supports the view that a sort of "altruism" and despair were the predominant motive and emotions. While she might have seen her and her children's future in exaggerated and negative terms, I believe she maintained reasonable capacity to judge events surrounding the alleged offence; that is she understood that her relationship with her husband was likely over; that there was probably another woman involved; given the circumstances it would not have been unreasonable for her to hold the view that he was disinterested in the children; she understood the effects of poison; how to mix it and the consequences; thus while there would have been some mild impairment in her capacity to judge events, I would not conclude that this impairment was significant. In my opinion, killing her children was a considered act and not consistent with a loss of control; in my view, it was a controlled action driven by a desire to effect a particular outcome that she had considered over a period of time and I do not believe she was significantly impaired in her capacity to control her actions. However it would be fair to be of the view that as a consequence of her distorted perception of events, believing (in an exaggerated sense) that her children would suffer if she was to kill herself, she was significantly impaired in her capacity to "judge right from wrong" due to her cognitive distortions and emotional distress she was experiencing at the material time; and on this basis she would have available to her a defence of substantial impairment. Mental Illness Defence Because this case rests on the issue of "wrongfulness" and because she has a "disease of the mind", she is also eligible for consideration under McNaughten's (mental illness defence). In my opinion, it is unlikely that the Defendant lost her capacity to understand the nature and quality of her actions; she manifested capacity to understand the potential impact that poison would have on herself and her children; she maintained the temerity to mix the poison with sugar in order to be aware that the taste might deter the children from taking the poison; at the time she understood that the consequences of her children taking the poison was potential death to herself and her children. The evidence suggests that in the time leading up to the alleged offence she was depressed but functioning reasonably. After the offence by the time she was seen by psychiatrists it appears that her symptoms had worsened and she was manifesting more severe depressive symptoms that were difficult to treat ultimately requiring ECT (electric convulsive therapy). This suggests that her mental state was not as severe in the time preceding the alleged offence as it was after. In my view however it is likely that at the time of the alleged offence she became despairing about her predicament and that of her children and as a consequence while depressed and in a state of despair made the decision to take the lives of her children as well driven by an emotionally laden and distorted view of their predicament. While her cognitive distortion (as described above) was an abnormal way of thinking about herself and her children, their environment or their future and resulted in "irrational" beliefs (because she saw things in depressive terms), her cognitive distortions were qualitatively different from delusional beliefs, in that they were based on reality (albeit that the reality was exaggerated), more amenable to reason, in keeping with social norms, based on understandable premises, and she would have maintained capacity for insight. The court might conclude that in this case at the material time, an abnormal thinking pattern caused by a cognitive distortion derived from a depression (having regard to her emotional state) is sufficient to conclude a defect of reason rendering her disabled or incapacitated in her ability to reason with a degree of composure, the wrongness of her actions, if she was of the view at the time that this was a better thing and thus right for her children. The court might also conclude that being amenable to reason, while she might have held the view that killing herself and her children was what she wanted to do and the right thing to do at that time, she still had capacity to think rationally of the reasons which to ordinary people would make that act right or wrong and might not be regarded by the court as being disabled or incapacitated in her ability to reason with a degree of composure the wrongness of her actions. The distinction between a) an "abnormality of mind" impairing in capacity to "judge right from wrong" versus b) a "defect of reason" causing a person not "to know the wrongfulness" is a very difficult determination to make, requiring the application of judicial experience and knowledge, or the determination of the jury having regard to the community's sense on the issue and not easily resolved by the psychiatrist; however if pressed, my marginal preference would be a partial defence of substantial impairment." 47 On the question of whether the accused's level of depression was greater following the death of her children than before, Dr Allnutt said: "A. The impression that I gained, the impression that I got was that there was an escalation in her depression after the offence. The, the information she provided to me was that she was functioning despite her depression reasonably before, but if you, and a number of days after the offence when the Justice Health notes begin she was quite depressed, withdrawn, at times found in a foetal position and there was a significant exacerbation in my view. I think there was a difference in the depressed state before than after." (T.54.27) 48 On the nature of her mental illness, he said: "I think that going to the mental illness defence in her case, I formulated her as suffering what we would term technically a cognitive distortion, not a delusion. That would be, it's, people who become depressed start perceiving their environment, themselves, their future, themselves in the environment in very negative terms and they have what we term generally depressogenic or depressive thoughts. For example, they might feel negative about themselves and as a consequence they have low self-esteem or they feel hopeless about their future. They see it in negative terms. Now, when depression becomes extremely severe, people can perceive themselves, their environment and their future in such extremely negative terms that it's delusional and in those cases the individual would be diagnosed with a psychotic depression. I did not conclude that with her. I thought she had a depression and I thought she saw things in negative terms but not to the extent that it was delusional. But that her thinking was distorted as far as her perception of herself and the environment and children in the environment was concerned and in that sense she had a cognitive distortion, which is a fairly common thinking defect in the sense it occurs in people with depression. Now, there is a difference between a cognitive distortion and distorted thought, a cognitively distorted thought and a delusional thought. A cognitively distorted thought is generally based on a sense of one's reality, but the important thing is that it is amenable to reason. People who are depressed you can reason with. They are able to see that their thoughts are, and I use this word in inverted commas, irrational. In other words, they don't accord entirely with reality but they are able to see that they don't accord. So there is not a loss or a total loss of capacity to reason. So if one applies the test for McNaughten, and again I must apologise to the court but I'm always afraid that I'm moving into areas that are more legal than psychiatric here. But if the term means, if the words used in the Act are incapacitated or disabled or unable, that is quite, to me it is quite, that goes to severity and unable to reason or incapacitated in reasoning. Unable means to me not amenable to reason. And in that sense I would say that she would not meet the test of McNaughten. The other area where I think she would not, in this case, not meet the test is, going back to Porter , is being able to reason. If I could quote, "To think rationally of reasons which to ordinary people would make the act right or wrong". A person with a cognitive distortion or depression is able to think rationally of ordinary reasons that would make, for her, "that would make the act right or wrong". Because they are amenable to reason. Whereas a person with a delusion, it is fixed, unshakeable, inflexible and it is incorrigible. Now, I always struggle with the issue of where one draws the line and distinguishes between disease of the mind causing the person not to know the wrongfulness of their actions, versus an abnormality of mind due to an underlying condition impacting the person's capacity to judge right from wrong. To me, it is a spectrum. I think Dr Wilcox was getting at where do we draw the line. This is very much a legal issue, a legal test. But as I said in my report if I was pressed to fall on one side or the other I would go for substantial impairment because of those reasons I have just enunciated. The other thing in this case is it appears to me that the circumstances that she found herself in after her husband finally rejected her, told her he was going to leave, triggered a strong emotional response, not necessarily, which then I think impacted on her reasoning process, but it wasn't, it was the circumstance rather than the depression. Although we cannot pull those things apart realistically, they were all connected." (T.56.41 – 58.3) 49 When Dr Allnutt was asked to comment on the element of anger in the letter left by the accused for her husband, he said: Yes. To me there are two messages in that. The one is, you know, look what you have done, it is because of you I'm doing this. The other one is, I don't want my children to grow up without a father. So there are two messages there. And that's, I think with all cases there is never one emotion, there are always multiple emotions and anger, resentment is underlying this. The question is, which is the strongest. I considered that but what, what I found, going through the notes was she kept going back to not wanting the children to be left alone without a father. So the theme weighting the written word that was there, the theme of not wanting them to suffer, persisted. Whether that persisted because she became depressed, I don't know. But in this case there are two messages, one is a blaming and the other one is the, the …" (T.59.31) 50 Under cross-examination the following answer was given by Dr Allnutt: "Q. Irrespective of the test to be applied, did you not come to the view that at the time the accused took the lives of her children she did genuinely believe that what she was doing was in their best interests, based upon her accounts on balance? A. In the context that I have espoused in my report on page 17, it is reasonable that she genuinely believed, in the same way a person who is driven by strong emotions genuinely believes they can get out of the car and express road rage or they can be incensed by what somebody has done where they feel justified. That's the sense I am getting at. If the court concludes that she has got a disease of the mind and she has a defect of reason, which I would put on the milder side of the scale, but her emotions affected her thinking processes and that's insanity, that's open to the court. But I would still say that where it fails is that irrespective of that she would have maintained capacity to think rationally of reasons which ordinary people would rate right or wrong. In other words, if you were able to sit her down and reason with her she would have been able to see why what she did didn't make sense." (T.61.7) 51 Later in the cross-examination the following proposition was put to Dr Allnutt: "Q. It's not the case, is it, that the accused needed to lose all contact with reality before being unable to appreciate the wrongfulness of her actions? A. I don't think one has to lose all contact with reality to be unable to, but I think one has to understand what we mean by reality. But I don't think she needs to have lost all contact with reality to be eligible for the mental illness defence. You see that in cases. Again, having said that, a lot of what I am saying is a legal determination and it is my psychiatric view, your Honour, here, but I don't think you need to lose all contact with reality to have a defect of reason so that you are unable to know the wrongfulness of the actions or as it is espoused in Porter ." (T.61.38) 52 And finally: "Q. You agree that the consistency of the accounts that have been provided by the accused supports an inference that her predominant motive at the relevant time was altruistic? A. Yes. I based that on the persistence of the information that she provided to psychiatrists over the weeks that she was depressed. This was a constant theme consistent with that, yes." (T.62.8) Consideration 53 I am satisfied beyond reasonable doubt that the accused had an intention to kill Joshua Bui and that Joshua Bui died from the results of asphyxiation caused by the accused on 19 February 2008. 54 I am satisfied beyond reasonable doubt that subject to the issues concerning mental responsibility, the culpability of the accused for the crime of murder has been established. 55 Similarly, I am satisfied beyond reasonable doubt that the accused had an intention to kill Jade Bui and that Jade Bui died as a result of asphyxiation caused by the accused on 19 February 2008 and that subject to the issue of mental responsibility, the culpability of the accused for the crime of murder has been established. 56 I note that, by implication, these matters were expressly conceded by counsel for the accused in his opening. 57 As previously indicated, the real issue before the Court is whether the accused was suffering from mental illness, as that term is understood in s 38 of the Mental Health (Forensic Provisions) Act, 1990 when the attacks occurred or whether as the Crown contends, the accused was suffering from a substantial impairment by abnormality of the mind under s 23A of the Crimes Act at that time. 58 The onus borne by the accused on this issue is stated in The King v Porter (1933) 55 CLR 182 at 184 as follows: "On the other hand, when that is proved, and the jury turn from the consideration of the question whether the things which constitute the crime were done to the question whether the man who did them was criminally responsible for his actions or was not, because of unsoundness of mind at the moment, it is necessary for the accused person to make out positively, upon a balance of probability, that he was not criminally responsible, and that he was not of such a mental condition at that time as to be criminally responsible. He has not got to remove all doubt from your minds. He, or rather his counsel has merely to make it appear to you as more probable on the whole that that was the state of his mind at the time he did the things charged, than otherwise." 59 The classic statement of principle is contained in R v McNaughten (1843) 8 ER 718 as follows: "To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong." 60 There is no suggestion in this case that the accused did not know the nature and quality of the act that she was doing. She was well aware that she was taking the life of her children. Consequently, the issue which requires consideration is the second part of the McNaughten test, i.e. did the accused know that what she was doing was wrong? 61 In The King v Porter that test was postulated in the following terms: "The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. … We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged." (p 108-190) 62 What that statement of principle makes clear is that the relevant time at which the accused's state of mind is to be assessed is at the time when the children were killed. That is not to say, however, that her actions before and after cannot be considered to determine her state of mind at the relevant time. Because the accused did not give evidence, the only evidence as to what she was thinking at that time are the letters which she left and her statements to the psychiatrists following her incarceration. 63 The above statements of principle require that at the time of committing the act the accused was labouring under a defect of reason from a disease of the mind. The evidence on that issue is all one-way. The psychiatrists have concluded that at the time when she killed the children, the accused was suffering from a severe depression. The psychiatrists agree that such a condition clearly satisfied the requirement for the defect of reason being due to a disease of the mind. 64 The question before the Court is an unusual one. Usually the issue between the Crown and the defence is that the Crown is pressing for a conviction for murder while the defence is arguing for either a mental illness defence or a defence of substantial impairment by abnormality of the mind. Whereas it is often necessary for a court to decide whether defences of mental illness per se or substantial impairment by abnormality of the mind have been made out, it is comparatively rare for the difference between those two defences to be as closely examined as in this case. 65 Some guidance on that question is provided by the decision of Kirby J in R v Jennings [2005] NSWSC 789. The issue in that case was the opposite to that which confronts the Court here. The Crown was seeking a verdict that the accused was not guilty of murder on the grounds of mental illness whereas the defence was seeking to make out the defence under s 23A Crimes Act, i.e. that the accused was substantially impaired by an abnormality of mind. 66 His Honour sought to distinguish between the two defences as follows: "25 The law, as you would expect, is fundamentally concerned with holding people accountable, that is, responsible, for their actions. It is recognised, however, that a person may not be responsible for what they do by reason of mental illness. However, there are degrees of mental illness. A person may be totally impaired at the time they commit a breach of the law, or their impairment may be less than total, although still substantial. 26 The defence of mental illness arises where the accused satisfies the Court, as a matter of probability, that, at the time of committing the act, he comes within what is known as the McNaughten rule ((1843) 10 Cl and Fin 200 [8ER 718]). The McNaughten rule has two limbs. The accused must demonstrate either that he was labouring under such a defect of reason, from a disease of the mind, that he did not know the nature and quality of his act or, alternatively, if he did know, then he did not know that what he was doing was wrong. The first limb, in lay terms, requires that the accused did not know what he was doing, whereas the second deals with his appreciation of the morality of what he was doing, that is, whether it was right or wrong. … 28 Where, as here, the issue of McNaughten mental illness is raised, whether by the Crown or the accused, or, indeed, by the Judge, the onus rests upon the accused to prove that defence on the balance of probabilities ( R v Ayoub (1984) 2 NSWLR 511 at 515). The Court is then obliged to resolve that issue before addressing the availability of the partial defence of substantial impairment. 29 Turning, then, to the partial defence, were the Court to find that the impairment suffered by the accused through mental illness was not total, but was nonetheless substantial, the partial defence of substantial impairment by reason of abnormality of mind may then be available. What, then, are the elements of that defence? The accused must prove, again as a matter of probability, the following: 1. That, at the time he stabbed Giuseppe Vitale, his capacity to understand events, or judge whether his actions were right or wrong, or to control himself, was substantially impaired by an abnormality of mind arising from an underlying condition; and 2. That such impairment was so substantial as to warrant his liability for murder being reduced to manslaughter. 30 There will be an abnormality of mind, for the purposes of this defence, where an accused's capacity to understand events or judge whether his actions were right or wrong or control himself, deviates from what may be regarded as normal, given that there is variation in the different ways in which people function. However, the abnormality of mind must arise from an underlying mental or physiological condition. It is not enough if the accused's inability is merely transitory, although it does not have to be a permanent condition." 67 In this case the medical evidence is divided. Dr Nielssen is firmly of the view that the accused has established the defence of mental illness. Dr Wilcox, while accepting that both defences are available to the accused, is of the opinion that the tribunal of fact should make the ultimate decision. Dr Allnutt is of the opinion that the question is difficult but on balance, he is of the opinion that the s 23A defence has been established but not the mental illness defence. 68 While I am mindful of the weight given by the psychiatrists to what they have been told by the accused since the death of her children, it seems to me that the best evidence of her state of mind at the relevant time comes from the letters which she wrote. 69 The letter to her parents indicates to me a keen awareness that other persons, in particular her parents, would not approve of the action which she proposed to take. The letter to her husband, while perpetuating the distorted view that by killing her children she was acting in their best interests, is replete with recriminations directed at her husband and in it she blames him for what she is about to do, i.e. kill the children. 70 The tone and content of those letters, while clearly indicating distorted or unsound ideas concerning what was best for the children, do not indicate that she was "quite incapable of taking into account the considerations which go to make right or wrong". 71 In reaching that conclusion, I am assisted by the question posed by Dr Wilcox in the last paragraph of the quotation at [43]. In relation to the question posed by Dr Wilcox, I am not satisfied that the accused's depressive disorder at the time of the killing of her children was so severe that she was incapable of reasoning about right or wrongness, according to ordinary standards of the thing which she was doing. Although she was somewhat equivocal in her written opinion, Dr Wilcox did conclude that the accused had the capacity to judge the difference between right and wrong [44]. 72 The opinion of Dr Allnutt that "A person with a cognitive distortion or depression is able to think rationally of ordinary reasons that would make, for her, "that would make the act right or wrong" because they are amenable to reason" accords with my impression of the accused as disclosed by her letters and what she told the psychiatrists. 73 As Dr Allnutt said "I always struggle with the issue of where one draws the line and distinguishes between disease of the mind causing the person not to know the wrongfulness of their actions, versus an abnormality of the mind due to an underlying condition impacting that person's capacity to judge right from wrong. To me, it is a spectrum. I think Dr Wilcox was getting at where we draw the line. This is very much a legal issue, a legal test." I agree with that analysis. 74 The accused has not satisfied me that the level of depression displayed by her after the death of the children represented the severity of the condition at the time she killed them. In that regard I accept the analysis of Drs Wilcox and Allnutt that the depression demonstrated by the accused in its extent and severity after the killing of the children, was greater than before. Accordingly, it is not appropriate to assess the accused's level of depression at the time she killed the children by reference to what she displayed afterwards. 75 I am also not persuaded, on the balance of probabilities, that by viewing mental illness as a spectrum with degrees of mental illness, the extent of the accused's mental illness at the time when she killed the children was of such a severity that she was unable to distinguish right from wrong. In that regard, the analysis of Drs Allnutt and Wilcox is to be preferred to that of Dr Nielssen. The letters which the accused left make it clear that, while her view of rightness and wrongness at the time she killed the children was distorted, she was still capable of distinguishing right from wrong and was still capable of being reasoned with and persuaded that her perception of rightness and wrongness was distorted. 76 The accused has not persuaded me, on the balance of probabilities, that at the time she killed her children she had such a mental disorder or diseased intelligence at that moment, that she was disabled from knowing that it was a wrong act to commit in the sense that ordinary reasonable men understand right and wrong. 77 The accused has persuaded me that at the time she killed her children her capacity to judge whether her actions were right or wrong was substantially impaired by an abnormality of the mind arising from an underlying condition and that this impairment was so substantial as to warrant her liability for murder being reduced to manslaughter. 78 It follows that while I have been satisfied, on the balance of probabilities, that the accused has made out a defence of substantial impairment by abnormality of the mind under s 23A of the Crimes Act, she has not satisfied me that she was suffering from a mental illness as that is understood in s 38 of the Mental Health (Forensic Provisions) Act 1990. Verdict 79 In respect of the death of Joshua Bui on 19 February 2008 I find the accused not guilty of murder but guilty of manslaughter. 80 In respect of the death of Jade Bui on 19 February 2008 I find the accused not guilty of murder but guilty of manslaughter. ********** 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.