Supreme Court New South Wales Medium Neutral Citation: R v RM [2011] NSWSC 861 Hearing dates: 12 August 2011 Decision date: 12 August 2011 Jurisdiction: Common Law - Criminal Before: BUDDIN J Decision: In accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 I find the accused not guilty of the charge of murder by reason of mental illness. I order that the accused be detained, pursuant to s 39 of the Act, in the custody of Corrective Services NSW until released by due process of law. The Registrar is to notify the Minister of Health and the Mental Health Review Tribunal of the terms of the orders made by the court. I direct that the various reports of Dr Nielssen, Dr Furst and of Dr Allnutt be drawn to the attention of Justice Health. Catchwords: CRIMINAL LAW - offence of murder - trial by judge alone - whether "defence" of mental illness available Legislation Cited: Criminal Procedure Act 1986 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Fleming v R (1998) 197 CLR 250 R v Coleman [2010] NSWSC 177 Category: Principal judgment Parties: Regina RM Representation: W Creasey (Crown) P Winch (Accused) Solicitor for Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Accused) File Number(s): 2009/19115 Judgment 1The accused is charged with the murder of her son, BM, on 24 August 2009. The trial of the accused has proceeded as a trial by judge alone after the accused made an election pursuant to s 132(1) of the Criminal Procedure Act 1986 to be tried in that fashion. The accused indicated that she had received advice from her solicitor before making the election and the Crown indicated its consent to the matter taking the course which was proposed. Section 133 of the Act casts certain obligations upon the judge in reaching a verdict in such a trial. I have had regard to those obligations: Fleming v R (1998) 197 CLR 250. 2It is common ground that the accused killed the deceased with the requisite intention to constitute the offence of murder. Accordingly, the only issue which I have to determine is whether the accused was mentally ill at the time of the killing. Even upon that issue the evidence is all one way and the parties are in agreement that I should find the accused not guilty by reason of mental illness. Background to the fatal incident 3The accused, who is aged 34, and her former de facto partner of five (5) years, DW, are the natural parents of BM who was 17 months old at the time of his death. The accused gave birth to BM by way of emergency c-section at John Hunter Hospital, Newcastle, on 18 March 2008. He was a healthy child at birth and remained in good health until his death. He was their only child. Although the couple resided together, it appears that for some time they had done so for the sake of their child. Indeed at the relevant time they were occupying separate bedrooms. 4The accused was a practising psychologist, having graduated from the University of New England. She remained in practice until 2006, at which time she was the subject of a complaint to the Health Care Complaints Commission (HCCC) by one of her former patients, as a result of which she was de-registered in 2008. 5The police investigation shows that as a child the accused was exposed to sexually inappropriate behaviour by her step-father and her mother. She reported that her step-father was violent and that he made frequent threats to kill himself. The accused's medical records show that she has suffered from mental health issues, particularly anxiety, since her teenage years. The first recorded incident of a panic attack in which medical attention was sought was in 1992 when she was 15. I have been provided with a great deal of material which addresses those issues. Although I have had regard to it, it is unnecessary to refer to every aspect of it. The medical records link her mental health problems to her history of abuse as a child. 6The accused has been hospitalised on two occasions after taking an overdose of prescribed medications. The first occasion was in May 2004. Her GP, Dr Bailey, reported that the accused was suffering from severe depression, anxiety and panic disorder and had attempted suicide with an overdose of drugs that had been prescribed for her. Dr Bailey arranged a referral to Dr Timothy McDonald, Consultant Psychiatrist. 7In a report dated 4 June 2004, Dr McDonald observed that: [RM] gave a history of longstanding anxiety from childhood, which crystallised into panic attacks from the age of fifteen. She describes classic panic attacks, but no agoraphobic response. In her adult years the tendency has been for the anxiety to become more pervasive and severe. She has been in intensive psychotherapy, dealing with early childhood traumas, but this has not helped stem the flow of panic. 8A week prior to that admission the accused was upset and crying and told her sister "that I don't want to be scared anymore". 9The second occasion occurred in March 2007 when she was hospitalised for more than a fortnight. She was found to be mentally ill and was detained as a temporary patient. Her medical notes reveal that she experienced "mood congruent auditory hallucinations". For nearly three weeks prior to this admission, she reported having heard music which she interpreted as "time to go" and having heard voices (mumbling) talking about her. 10Between 2006 and 2009 the accused had conversations with various people which revealed something of her deteriorating state of mind. For example, DW told police that the accused had battled with anxiety and panic attacks and depression. He noted that her anxiety made her fear things that sometimes were not there. He also informed police that "something (played) on her mind...like, dark stuff, like things out to get her". 11Sharan Taylor first met the accused in 2005/6. They were both working in a healing centre in Cessnock. Several months after they met, the accused told Ms Taylor that she was "soul mates" with Eddie Van Halen (a member of the rock group Van Halen) and that he had tricked her by falsely claiming that he was coming to pick her up. 12Another acquaintance, KG, reported that the accused was "dealing with things such as aliens, past lives, foreign spirits and other 'weird' phenomena" and that her behaviour was "unusual and erratic". KG said that the accused believed that there was a spaceship that shone a blue light onto her house which protected her and gave her energy. 13According to her sister, the accused "really started being weird" at around about the time she commenced working at the healing centre. For instance, the accused claimed that she was seeing and communicating with dead people; that she was communicating telepathically with a friend of hers and with her sister's cat; that she was seeing "signs" and on one occasion that she was communicating with Eddie Van Halen to try and help him get off drugs. The accused's sister commented that "you'd talk to her and it's like you were talking to three different people at once". The accused's brother noticed similar behaviour. 14CC, who had been the accused's partner for many years until they separated in 2006, noticed changes in the accused about the time that she commenced work in the healing centre. He said that in May 2006 the accused began to develop an obsession with the band Van Halen. On one occasion CC saw the accused listening to very loud Van Halen music through headphones. The accused told CC that she was "listening for the message...the message that Eddie had encoded for me". The accused also told him about a "Reptilian Human Conspiracy Theory" and told him that "reptilians" exist in positions of power around the world. 15Deborah Horsey met the accused in mid 2008. The accused told her that UFOs were hovering over her house and that she had to get away. She said that they were attacking both her and BM. The accused also told her that she heard voices in her head and on one occasion she told Ms Horsey about "reptilian aliens". 16On 9 October 2008 the accused told a long time friend, Brett Stone, that she had aerial surveillance because of a threat upon her life. As they were chatting outside, a light aircraft flew overhead. The accused told Mr Stone "there are my boys overhead in the plane. Let's just give them a wave so they know I am OK". The accused asserted that the threat to her life and to BM emanated from the former patient who had lodged a complaint with the HCCC. In an email to Mr Stone dated 4 October 2008 the accused wrote, inter alia, "...current intel indicates that my former patient is still on the loose & out for blood - she's intelligent, psychotic & is a qualified private investigator - a lethal mix..." 17In August 2009 the accused met Andre Coppenrath and they shared some of their personal experiences with UFOs. The accused told Coppenrath that there was a mothercraft over her house and that she was scared of the "reptiles". She said that she was worried about them getting into her head and taking her away. She said that she was also worried about what they might do to BM. 18On the day of the offence, DW was picked up from home by a colleague at about 6.00am. BM was awake at that time and was apparently in good spirits. The accused was also awake. After work, DW along with a number of co-workers, attended a local club before arriving home at about 6.00pm. On his arrival he heard what he believed to be the sound of the accused snoring in her room. He assumed that BM was asleep in his cot. He watched television for about an hour and then proceeded to prepare a bottle of formula for BM. Upon entering the bedroom with the bottle he peered into the cot and noticed a piece of paper across the chest of BM. The note read, "I am sorry I had to protect [ BM] and I from the asp reptilians. God forgive me ". DW noticed that BM was cold to touch and that he was stiff. 19DW went into the accused's bedroom and screamed at her to get up. The accused, after some delay, got out of bed but was both incoherent and completely disorientated. DW, in anger, punched the accused's bedroom door a number of times, causing minor injuries to his hands. He also head- butted the wall. According to DW, the accused seemed to be scared of something. She was slurring her words. He said that she told him that something was after her. The accused went to the kitchen where she sat on the floor before lapsing into a state of unconsciousness. DW contacted emergency services and an ambulance officer arrived shortly afterwards. He examined BM and formed the view that he had been dead for some hours. The accused was conveyed under police guard to Wyong Hospital in an unconscious state. 20A large number of empty blister packs of various prescription medications were located in the kitchen waste bin. These packs were collected by ambulance officers and taken to Wyong Hospital to assist with the treatment of the accused. A blood sample taken from the accused at 11.00 pm revealed the presence of codeine, alprazolam, promethazine and mirtazapine . A urine toxicological screen indicated a positive result for benzodiazepines and opiates. Dr Judith Perl, forensic pharmacologist, expressed the opinion that: In summary, there does not appear to be any indication of an overdose resulting in life-threatening effects of any particular medication used by [RM]. However, there is an indication that her higher than expected blood levels were due to higher than prescribed doses of mirtazapine and alprazolam having been used. This would have resulted in some of the symptoms observed in her after the incident and these suggest impairment of her cognitive and motor functions due to the sedative nature of these drugs. Some symptoms also appear to be due to her mental illness, but I cannot elaborate further on this area as it is not my field of expertise. 21When the accused became coherent, police spoke with her at the hospital at 8.10am on 25 August. The accused was informed that she was under arrest and was cautioned. She remained under police guard until a medical and psychiatric release could be obtained . 22Shortly after 1 pm that afternoon, police investigators attended the hospital after being informed that the accused was cleared for release pending a psychiatric evaluation. Upon their arrival, police were given an evaluation of the accused which had been conducted by a psychiatrist and two psychiatric registrars. During the course of the evaluation the accused said that she had suffocated BM. She had then written a note and blessed the child before taking an overdose of medication. She said that she wanted to die and that she expected to do so from the overdose. She said, "Absolutely, it was wrong....I'm the one who fucked up everything and killed my son". She was tearful and expressed remorse. During the evaluation she reported a four year history of delusions, perceptual disturbances and passivity phenomena. She said that she believed that "reptilians" had come to earth from space, mocking her and giving her commands to kill herself and that she was being controlled by them. She explained that this phenomenon had developed over the previous three months and that she had become increasingly worried about her son's safety. She said that she thought that her son would be safer from the "reptilians" in heaven. 23During the evaluation the accused appeared to dissociate for brief periods of time. She reported seeing and hearing "reptilians" and experiencing physical sensations when they were near. In their joint report, the consultant psychiatrist and the two psychiatric registrars opined that the accused was mentally ill. They said that she presented with a psychotic illness, which was most probably related to paranoid schizophrenia. She also had a co-morbid Major Depression and Generalised Anxiety Disorder. Upon being placed under arrest the accused told detectives, that "I deserve to be punished for what I've done". The accused was conveyed to The Entrance Police Station and after being entered into custody, she agreed to be interviewed. During the interview the accused told police that she had killed her son because she did not want him to suffer in this world. She also said "I've got nothing to hide. I'm guilty." When asked why she was protecting her son, she said "Please, I don't want to go there, I can't talk about it any more". Her answers were lucid and concise although she did state that her son was a product of an immaculate conception and that his father was God. 24She told police that she had ingested about a half a handful of her medication which included Avanza (an antidepressant) and Xanax (for anxiety). She then became distressed and declined to be interviewed any further. In a subsequent unrecorded interview with police, the accused admitted suffocating BM by using her hands and two white face washers whilst he was on the lounge room floor. Two face washers were found on a cabinet next to the entrance to the lounge room. There is no suggestion that the accused harmed the child in any way prior to this event. 25The accused, who has no prior criminal history, has remained in custody since her arrest. On 23 June 2010 she waived her right to a committal hearing and was committed to this Court for arraignment. The psychiatric evidence concerning the accused's mental condition 26Dr Olav Nielssen prepared a report, dated 28 October 2009, at the request of the accused's legal representatives. His opinion was expressed in the following terms: The diagnosis of schizophrenia is made on the basis of the history of typical symptoms of schizophrenia in the form of auditory hallucinations of several years' duration, giving rise to bizarre delusional beliefs. [RM's] presentation was also typical of a person with an undertreated schizophrenic illness in that she had a very blunted emotional range, appeared distracted as though experiencing auditory hallucinations during the interview, expressed the bizarre belief that I would be in danger if she disclosed the presence of symptoms to me. There was characteristic ambivalence in her attitude to her symptoms in that she agreed that her training should have enabled her to consider the diagnosis of schizophrenia, but also seemed compelled to obey the voices and to hold the belief that her son was better off dead because of the fate that he would have faced had she not killed him. [RM's] depressive illness appears to be secondary to the effect of very distressing psychotic symptoms, rather than her psychotic symptoms being a manifestation of severe depression. Consideration was given to the possibility that [RM] had drawn on her experience as a psychologist working in community mental health to fabricate her symptoms. However, her account of symptoms was thought to be consistent with the presence of severe mental illness and I expect the medical records from James Fletcher Hospital and other corroborative information will confirm the pattern of symptoms. There was no history of brain injury or substance abuse. Based on the information available and her presentation at the recent interview, I believe [RM] has the defence of mental illness open to her. She has a severe psychotic illness, probably schizophrenia, that gave rise to a defect of reason in the form of the bizarre delusional belief that she and her son were in danger of a tormenting death in the hands of Alien creatures. Her illness did not deprive her of the knowledge of the nature or quality of her act which is reflected in her statements to the police afterwards or that the act was illegal. The effect of delusional beliefs arising from ongoing symptoms was to deprive her of the knowledge that killing her son was morally wrong. 27Dr Richard Furst also prepared a report, dated 20 June 2010, at the request of the accused's legal representatives. His opinion was expressed in the following terms: There is well established history of anxiety with panic attacks for which she has been treated over several years with antidepressant medication and Xanax. Her clinical history is highly suggestive of a severe disturbance of mood in the form of a Major Depressive Disorder with psychotic symptoms, however the persistence of her delusional beliefs about aliens and various other psychotic phenomena over the last nine months now makes it more likely that she is suffering from a major psychotic illness best classified as Schizoaffective Disorder. She may also have an underlying personality disorder with Borderline features. ... In the case of [RM], she was suffering from a psychotic illness at the time in question that was characterised by multiple experiences of hearing and seeing alien figures she called 'reptilians' who she took to be an evil and dark presence over her house. She described increased worry and panic attacks in the period preceding the index offence, felt down and saw an alien ship blocking out the sun. She remembers that it was "really dark" and that she experienced nightmares. She told me that she would walk from one room of the house to another and that "it was like it had been taken over by darkness...it looked darker." She thought that this dark presence was due to the Reptilians and burnt incense and candle to try and get rid of them. She believed that both she and [BM] were being overcome by the reptilians, in that [BM] had changed his appearance, including his facial features and his eye colour. This description is consistent with a Capgras delusion (delusion of imposters), which reinforced her belief that the Reptilians were sucking his soul out and changing him into something else she referred to as a 'Changeling'. It is highly likely that she was panicking about [BM's] safety, as she heard the 'Reptilians' making hissing noises saying "we're going to get him". Although she could not recall killing [BM] when I interviewed her, there was a verbatim account of a highly emotional, thought disordered and psychotic nature on the morning after the index offence that is outlined in the statements of Dr Minoka Galappaththi and Dr Pashu that included the following exchanges: Dr Pashu: Who is [BM]? The accused: "My son [BM...17 months old...over and over they told me that I need to kill [BM]...he needed to go to heaven." Dr Pashu...What happened to [BM]? The accused: "They are coming and going...'just kill the child and kill yourself'...that's the only way to end the suffering "I killed him...suffocated him...I think it was the last evening'...I just can't see how I could have done it...may be it's wrong." These responses indicate that [RM] was aware of her actions at the time in question and felt compelled to do this because she was being commanded to by the 'reptilians' and saw no real alternative to end her suffering and the suffering and attack she perceived [BM] to be under. Her act of placing a note on her son's body that said "I am sorry I had to protect [BM] and I from the asp reptilians. God forgive me" also illustrates her mens rea at the time in question, which led to her killing [BM] and trying to kill herself. Although the question of her mental illness at the time of the index offence is a matter for the trier of fact, she was clearly delusional about the victim, perceiving that he was under attack from the reptilians and that his soul was in danger. It is highly likely that her delusions were a product of her schizoaffective disorder, an illness that has been recognised in law as a disease of the mind. In my opinion, her psychotic symptoms deprived her of the ability to appreciate the moral wrongfulness of her actions in killing [BM] and stopped her from reasoning about her actions with a moderate degree of sense or composure. I believe that she has the mental illness defence open to her. 28Dr Allnutt prepared a report, dated 2 November 2010, at the request of the Crown's legal representatives. He concluded: I am however more inclined to accept that she suffered panic attacks for many years and that in the material time leading up to the alleged offences, she was likely suffering depressive symptoms; and as a result , despite my misgivings, I am prepared to conclude that she suffered from, what in legal terms could be regarded as "disease of the mind" or an "underlying condition", due to a depression and anxiety. ... If the court accepts that she was psychotic at the material time of the alleged offence - that is, that she rationalised that she should kill the child because it was in his interest and that she acted with delusional justification - the court could conclude that she was incapable of knowing the wrongfulness of her actions and that she has a mental illness defence because she would have been significantly compromised in that capacity. If the court does not accept that she was psychotic at the material time of the alleged offence, but accepts she was suffering a depression with anxiety, then there are grounds to consider that she was to some lesser degree compromised in her capacity to know the wrongfulness of her actions and the (sic) could consider a defence of mental illness. 29After having been provided with further material Dr Allnutt observed, in a subsequent report, dated 28 March 2011: Having regard to that "timeline", there is evidence of interest in crystals, Reiki, subliminal messages, commencing October 1987, with evidence of anxiety in the early 1990s and continuing; there appear to be changes occurring in her behaviour in early 2006...it is noted that she started saying "weird stuff" like she could see dead people, communicate them (sic), help people transition through death, that she communicates telepathically with a friend and a cat, and sees signs in things like number plates. These are symptoms that are consistent with psychosis that seem to emerge at a time where there is little evidence for underlying motive for fabrication or exaggeration, and I regard this as significant. While I continue to believe that her presentation is atypical, I accept that it is likely that she suffered psychosis at the material time that the alleged offence (sic). My opinion in regard to the defence available to her is explained in my report; that is, depending on how the court interprets the evidence she would be eligible for a defence of mental illness or substantial impairment. 30To establish the defence of mental illness the accused must prove, on the balance of probabilities, that at the time of the killing she was suffering from such a defect of reasoning arising from a disease of the mind that she did not know the nature and quality of what she was doing, or alternatively if she did know it, that she did not know that what she was doing was wrong (the M'Naghten test). It is the second limb of that test which is of particular significance in the present case. That requirement was described in the following terms by Dixon J (as his Honour then was) in R v Porter (1933) 55 CLR 182: 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. (at 189-90) See also Stapleton v R (1952) 86 CLR 358 at 367. 31It is to be observed that the opinions of Dr Nielssen, Dr Furst and Dr Allnutt, particularly in those passages to which I have referred, are directed to the test which I am bound to apply. In light of the evidence which I have set out, which includes the various utterances and actions of the accused at the relevant time, as well as her lengthy history of mental illness, I have no hesitation in accepting the opinions of those experts, each of whom is eminently qualified in the area of forensic psychiatry. 32I accept the submission made by each of the parties that the accused has established upon the balance of probabilities that she did not know, in the relevant sense, that what she was doing was wrong, and that therefore she was mentally ill at the time she killed the deceased. It is axiomatic that a person who is found to be mentally ill cannot be held criminally responsible for his or her actions. Order 33In accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 (the Act) I find the accused not guilty of the charge of murder by reason of mental illness. In doing so I have had regard, pursuant to s 37 of the Act, to the practical and legal consequences of that finding. See R v Coleman [2010] NSWSC 177 per Hall J [at para 69-79]. I order that the accused be detained, pursuant to s 39 of the Act, in the custody of Corrective Services NSW until released by due process of law. The Registrar is to notify the Minister of Health and the Mental Health Review Tribunal of the terms of the orders made by the court. I direct that the various reports of Dr Nielssen, Dr Furst and of Dr Allnutt be drawn to the attention of Justice Health. 34Finally, I would like to take the opportunity of extending my sympathy to the family of the deceased, who undoubtedly have been deeply affected by this tragic event. ********** 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. Decision last updated: 12 August 2011