R v Crispe (No 2) [2014] NSWDC 201

District Court New South Wales

Medium Neutral Citation: R v Crispe (No 2) [2014] NSWDC 201 Hearing dates: 28 July 2014 - 29 July 2014 Decision date: 29 July 2014 Before: Cogswell SC DCJ Decision: I am satisfied beyond reasonable doubt that the offender did the act charged in count 1 in the indictment but I am satisfied on the balance of probabilities that she was mentally ill at the time and I return a special verdict that the offender is not guilty by reason of mental illness. Catchwords: CRIMINAL LAW - trial by judge alone - offences against the person - wounding with intent to cause grievous bodily harm - stabbed with scissors - defence of mental illness - legal test - responsibility for actions according to law - mental health - disease of the mind - psychotic depression - unanimous medical evidence - defence determined before mental element of offence - not able to appreciate wrongness - special verdict of not guilty by reason of mental illness Legislation Cited: Crimes Act 1900 (NSW), s 33(1)(a) Criminal Procedure Act 1986 (NSW), s 132(2) Mental Health (Forensic Provisions) Act 1990, ss 37, 38, 39 Cases Cited: The King v Porter (1933) 55 CLR 182 Hawkins v The Queen (1994) 179 CLR 500 Regina v Minani [2005] NSWCCA 226; 63 NSWLR 490 Category: Principal judgment Parties: The Crown Tricia Oi Foong Crispe, offender Representation: Mr P Thompson, Crown Mr S Schaudin, Offender File Number(s): 2012/00270941

Judgment 1I will hear you both on the orders in due course but I can indicate that I find a special verdict in respect of your client. 2Tricia Crispe and Phillip Crispe were married, but separated. They had two young children. Phillip Crispe was bringing the children around to Tricia Crispe's house on a Saturday morning at about eight. It was 16 June 2012. Tricia Crispe started to stab him with a knife and with scissors. He was seriously wounded, but luckily survived. 3As a result of what happened Tricia Crispe was charged with a very serious criminal offence. It is the offence of wounding with intent to cause grievous bodily harm. It is a crime against s 33(1)(a) of the Crimes Act 1900 (NSW). In the alternative, she is charged with recklessly wounding Phillip Crispe. Tricia Crispe was arraigned on those charges before me here in the District Court at Parramatta yesterday. She pleaded not guilty to each offence and it is clear from the submissions of her counsel, Mr Schaudin, that that plea was a plea of not guilty on the basis that his client was mentally ill at the time, so as not to be responsible according to law, for her actions. An issue arose immediately yesterday about Tricia Crispe's fitness for trial. In a judgment yesterday, I determined that she was fit for trial. Both Tricia Crispe and the prosecutor have jointly applied for an order that she be tried by a judge alone. I made that order yesterday in compliance with s 132(2) of the Criminal Procedure Act 1986 (NSW). 4The issue for me, therefore, is whether I am satisfied beyond reasonable doubt that Tricia Crispe performed the actions which the prosecution claims she performed. The onus of so satisfying me remains with the prosecution. The second issue is whether the defence has satisfied me on the balance of probabilities that Tricia Crispe was mentally ill at the time, so as not to be responsible, according to law, for her actions. 5I should briefly review first the evidence about what happened at the scene by way of dealing with the first issue. The evidence before me comprises two exhibits. Exhibit A is a bundle of statements and photographs and reports tendered by Mr P Thompson who appears as prosecutor; and exhibit 1 is a report of Dr Richard Furst, tendered by Mr Schaudin on behalf of his client. 6The statements in exhibit A include a statement from Phillip Crispe. He provides some history of his relationship with Tricia Crispe and the arrangements they had made for shared parenting. There were times, he said, "when we have argued or had problems". He recollected about five occasions "where things have been bad between us. Most of these have been reported to the police". In accordance with a previous arrangement with Tricia Crispe, Phillip Crispe was delivering their sons to where Tricia Crispe was living in Berala. Both her parents were there at the time, visiting from Malaysia. As Mr Crispe was turning his attention to one of the boys, who was expressing some reluctance to be handed over to his mother, he "felt an arm come over my right shoulder and around my throat". He felt what he "thought was a punch to the back of my head". He felt a sharp pain in his hand when he put his hand up to protect his head, and felt what he described as "liquid running down the back of my head and down my back". He "realised I was being stabbed and was bleeding". 7The next thing Phillip Crispe remembers is lying on the floor inside the unit. He saw that his hand had been "cut multiple times and was bleeding". He saw that - "Tricia still had hold of a knife. I was able to get hold of the blade of the knife with my left hand. I was trying to get the knife from her or stop the knife from coming any closer to me. Tricia was still trying to stab me by continually pushing it down into my hand. I remember the knife had a silver blade and looked like a large kitchen knife." He recounted that "Tricia used another item to stab me twice in the face and head area". He felt a sharp pain again. He was taken by ambulance to Auburn Hospital. He had a deep laceration to his right hand, severing a tendon. There were also lacerations on his right eyebrow and scalp. He required surgery to heal his hand and attention to the wounds on his head. 8Ms Swee Eng Tan is Tricia Crispe's mother. As I said, she was staying with Tricia Crispe at the time. She was in a bedroom with her husband and could hear a commotion outside. She stepped out of the bedroom and, just inside the front door, she saw Tricia and Phillip Crispe "physically fighting on the ground, hitting each other". She remembers "seeing a knife in Tricia's hand and she was trying to stab Phillip in the head". She described the knife as "a kitchen knife" with "a 20 centimetre blade and black handle". Phillip was trying to grab her hands and grapple the knife away from her. She could see blood coming from Phillip's head. She said that her daughter was continually shouting "You have hurt me: you have hurt me so much. He has made me suffer so much."Ms Tan's husband, Wengfatt Hooi, also came out of the bedroom to see that "Phillip was lying face down". He too saw blood on Phillip's head. He was trying to separate them. He remembers seeing "a silver blade knife in someone's hand. I do not know who was holding the knife, either Phillip or Tricia". 9Some neighbours in the block of units were the first other people at the scene. One of the witnesses, Mahfuzur Arhmon Sumon, said he saw an African man, who was also a neighbour, "trying to hold one of the wrists of the Asian female as she was holding a knife in this hand". Mr Sumon reported that the African said "Guys, move. She's got a knife in her hand". Another man who was staying nearby, Fodah Bayoh, remembers a person who was obviously Tricia Crispe saying, "He's been trying to hurt me". He checked that the police had been called, and then he saw a woman - I accept it was Tricia Crispe - "pick up a pair of scissors that were on the ground next to her using her right hand. I watched her use the scissors to stab the male on the ground in the head once." He got the scissors away from Tricia Crispe. Police came and secured the scene. Photographs were taken of a knife and more than one pair of scissors and Mr Crispe's head and hand, which indeed show bloodied wounds. One of the police, Detective Senior Constable Matthew Barham, recalled Tricia Crispe continually saying "He's been trying to hurt me. He has been trying to take my money and kids". She was saying that repeatedly, as well as "other things that I was not able to understand". He tried to inform Ms Crispe that she was under arrest and to caution her, "but she was continually talking and it was obvious she was not listening to me". He tried to interview Ms Crispe a couple of weeks later at Cumberland Hospital but it became obvious to him that Ms Crispe "was still suffering suicidal and paranoid thoughts". 10Tricia Crispe was seen by Senior Constable Barry Thurling with "bloodstains on both her hands and palms, as well as bloodstains on her socks". He too heard her continually saying that Phillip Crispe wanted to hurt her and take her money. Constable Jessica Arnott heard her saying the same thing. She and another police officer accompanied Tricia Crispe in an ambulance to Westmead Hospital. 11Although she did not appear to have any physical injuries, Constable Arnott recounted that she "was assessed by a further social worker/psychiatrist" for an extended period of time. Constable Arnott then spoke to the psychiatrist "who informed me that she was unable to obtain a full recollection of the incident; however she advised me that she appeared significantly disoriented, spoke little English, and repeated to state, 'he was trying to hurt me'". The police were told that Ms Crispe "needed to be taken to Cumberland Hospital and assessed" and that was arranged. 12The police accompanied her there, where she still "appeared increasingly disoriented". Constable Arnott noted that Ms Crispe "continued to walk around the waiting room very slowly, and approached the reception window on a number of occasion, however would not speak". Senior Constable Dan Chilvers arrested Tricia Crispe, who said that Phillip Crispe "was trying to hurt me" and that they had had an argument outside the unit. When asked about whether he hurt her, she said that he "isalways abusing me and not make my children come with me". He confirmed that an ambulance was called for her as well to be taken for a mental health assessment. 13On behalf of his client, Mr Schaudin, in his helpful written submissions which became MFI 4, conceded "that it was her act that caused the wounds to Phillip Crispe". Mr Thompson, in his equally helpful written submissions which are marked MFI 3, also reviewed the evidence and submitted that I "would be satisfied beyond reasonable doubt that the Crown has proved the actus reas charged with respect to the first count in the indictment beyond reasonable doubt. The contrary has not been contended at the trial by learned counsel for the accused." 14I have no hesitation in being satisfied beyond reasonable doubt that Tricia Crispe wounded Phillip Crispe on 16 June 2012 with a knife and with at least one pair of scissors. 15I turn now to the second issue, which is whether Tricia Crispe has satisfied me on the balance of probabilities that at the time she inflicted the wounds on Phillip Crispe, she was "mentally ill, so as not to be responsible, according to law, for...her action at the time when the act was done." I am quoting from s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW). 16Mr Thompson has helpfully made submissions on the law relating to the establishment of a defence on the grounds of mental illness. I accept that a disease of the mind is, as Mr Thompson submitted, "any disease which is capable of affecting the mind, irrespective of whether it has a mental or physical origin and irrespective of whether or not the defect of reason caused is temporary or permanent." One of the longstanding points of reference for the law for assessing the applicability of the defence of mental illness is a direction given by Sir Owen Dixon sitting at first instance in the High Court of Australia, but trying a murder charge in Canberra in 1933. The relevant parts of his Honour's summing-up to the jury is contained in The King v Porter (1933) 55 CLR 182. Mr Thompson has directed me to the relevant passages in that case.His Honour referred to the two bases on which a jury may return such a verdict. His Honour at 188 described them briefly as follows - "One state of mind is that in which he is prevented by a mental disorder from knowing the physical nature of the act he is doing; the other is that he was prevented from knowing that what he was doing was wrong." 17Because of the preponderance of the evidence in this case, I will focus on the second requirement. His Honour said over 189 -190 the following - "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 of composure it may be said that he could not know that what he was doing was wrong." His Honour observed that wrong means "wrong, having regard to the everyday standards of reasonable people". Whilst dealing with legal issues, I should mention another matter. I have made a determination so far only that I am satisfied beyond reasonable doubt that Tricia Crispe wounded Phillip Crispe in the way claimed by the prosecution. I have not yet made a determination about the question of whether she did so, to quote from the indictment, "with intent to cause grievous bodily harm". I am instead turning to the question of the defence of mental illness. I do that in compliance with the judgment of the High Court in Hawkins v The Queen (1994) 179 CLR 500. The case concerned an alleged murder by a young man of his father in a pine plantation in Railton in Tasmania. In a unanimous judgment, the Court said as follows at 517 - "In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? These questions must be resolved...before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done fell short of insanity..." 18In Regina v Minani [2005] NSWCCA 226; 63 NSWLR 490, Hunt AJ, speaking for the Court of Criminal Appeal, followed the High Court's judgment at that passage, confirming that that was the applicable approach in New South Wales. (See at [32] of his Honour's judgment.) 19Accordingly, I should turn to the evidence concerning the mental health of Tricia Crispe. There is little direct evidence of Ms Crispe's mental health up to the time of the commission of the offence, but there is a good deal of indirect evidence in histories taken from her by Dr Furst in exhibit 1 and Dr Stephen Allnutt in his report dated 12 November 2013, which was part of exhibit A. 20Dr Furst noted an "episode of severe depression in 2005 after the birth of her youngest son". He noted that Ms Crispe "tried to cut herself with a knife and was admitted to St John of God Hospital". She was there for about a week. The discharge summary "indicates she was suffering from somatic and nihilistic delusions at the time, being diagnosed with a psychotic depression". Dr Furst also notes "an admission to the Macquarie Hospital in Ryde in November 2005 for ten days". Ms Crispe had taken an overdose. Dr Furst observed that Ms Crispe "decompensated after separating from her husband". He noted also that she "was not functioning well in the months preceding the events before the Court". She took time off her work as a teacher and reported to Dr Furst that she "felt as though she had 'lost everything'. Her mother, who was present at the time, said her condition had deteriorated in May 2012, describing her as 'traumatised by Phillip and her children'." 21Dr Furst noted that Ms Crispe "was admitted to Cumberland Hospital for five months following her alleged offences". She was given a mixture of antidepressant and antipsychotic medication. She was more recently admitted to Concord Hospital, again after a suicide attempt, in February 2012. She had no reported family history of mental illness and is "a non smoker who does not drink very often". There is no suggestion of any illicit drugs. 22Dr Furst noted an entry by a psychiatric registrar who examined Ms Crispe on the date that she wounded Phillip Crispe. The entry extracted by Dr Furst reads as follows: "Ms Crispe appeared withdrawn and was very restricted in her affect. She said repeatedly that she believes her husband wants to kill her, and says she doesn't have a future and wants to die...Ms Crispe appears to be acting irrationally and there are significant concerns about her safety and the safety of others"-- 23Dr Furst noted that Ms Crispe "was deemed a mentally ill person under the meaning of the Mental Health Act". Whilst a patient at Cumberland Hospital, Dr Furst noted a history that she wanted to die, saw no future for herself and still believed that her husband would kill her. Ms Crispe "was noted to be vague, perplexed and highly emotional, with an initial diagnosis of a delusional disorder and a melancholic depression". 24Another doctor who examined her on the same day, namely when the events occurred, noted that Ms Crispe was "sitting huddled in the chair hyper vigilant at sounds, examiners' behaviour; reports feeling victimised, exploited, persecuted, and being under threat for life...mentally ill. No less restrictive place currently."Dr Furst noted diagnoses in earlier admissions to the St John of God and Macquarie Hospitals as including "major depressive disorder with psychotic features". Dr Furst himself diagnosed Ms Crispe as having a major depressive disorder with melancholic and psychotic features. 25Addressing the question of the state of her mental illness at the time that she wounded Mr Crispe, Dr Furst observed - "Observations from medical staff who assessed Ms Crispe at Westmead Hospital and Cumberland Hospital on the day of the offence were consistent with her being severely depressed and psychotic at the time in question, including a belief that her husband Phillip intended to kill her." He observed that she made "little improvement despite her five month admission to Cumberland Hospital" and that she had had a recent relapse. He pointed out that a major depressive disorder with melancholic and psychotic features "has been recognised at law as a disease of the mind". He expressed his opinion as follows: "In my opinion, Ms Crispe had a defect of reason at the time of the offence in question before the Court, believing that her husband was following her, monitoring her and wanted to kill her. She was also agitated, nihilistic and wanted to die. In my opinion, the severe depressive illness and psychosis Ms Crispe was suffering from when she stabbed her husband deprived her of the ability to reason about her actions with a moderate degree of sense of composure. She was unable to appreciate the wrongfulness of her actions. She has the mental illness defence available to her." 26Dr Furst went on to consider recommendations regarding future treatment, which I will take into account when considering the appropriate orders to make in this case. When Dr Allnutt examined Ms Crispe on 25 October 2013, he too noted the earlier admissions to hospital. He noted accounts that she thought people were following her and that she was "being watched and being recorded on the phone". She thought that the "TV was telling her something, like they were commenting on her, like sending a message which caused her to turn it off". 27Dr Allnutt noted that Ms Crispe's mother had observed, in the months before the event, that her daughter was "not good" and "was very upset". Ms Crispe's mother also stated that her daughter commented that the birds were very quiet and not chirpy, which her mother thought was "weird". 28Ms Crispe, in her account to Dr Allnutt, said that she "did not recall stabbing" Phillip Crispe. Dr Allnutt also noted no history of family mental illness nor any excess alcohol or illicit drugs. 29Dr Allnutt also reviewed various documents relating to Ms Crispe's medical history. Dr Allnutt expressed his opinion and qualified it by indicating that it "is based on the assumption that there is limited evidence that her husband had her surveillanced, was conspiring with others or planning to kill her". He thought that Ms Crispe "presents with symptoms consistent with a recurrent depressive disorder with associated psychotic features". 30Dr Allnutt too was of the opinion that at the time of the events, Ms Crispe "was experiencing a 'disease of the mind'. That is, symptoms of depression with associated psychosis". He thought that her belief that her husband was wanting to kill her was probably delusional and that "her perception of others in her environment would have been significantly distorted by virtue of a depression due to cognitive distortions". He thought that those observations along with her delusional beliefs would have impacted on her capacity to make rational interpretations of events and thus, she experienced a defect of reason. He did not believe that "Ms Crispe's mental illness was of a severity that it negated her capacity to know the nature and quality of her actions. "He observed that he did believe that "she maintained a capacity to understand that a knife could harm him if she utilised it". However, he confirmed his view that "she was significantly compromised in her capacity to know the wrongfulness of her actions or in her capacity to reason about the wrongfulness of her actions". He concluded on balance that "it would be reasonable to conclude that her mental state was disturbed severely enough to have compromised her capacity to reason about the wrongfulness, to the extent that on balance, she would have had a defence of a mental illness available to her."Dr Allnutt, too, made some recommendations for disposal of the case. 31Mr Schaudin, in his written submissions, drew my attention to authority for the proposition that if medical evidence relating to the issue of mental illness is unanimous, the evidence cannot be rejected by the tribunal of fact in absence of other material which casts some doubt on it. Mr Thompson acknowledged "that both Dr Allnutt and Dr Furst are well respected and well known to this court" and submitted that "there is no basis for this Honourable court to do other than accept the whole body of expert evidence contained in the reports of Drs Allnutt and Furst." He went on to argue that the Court "can be comfortably satisfied on the balance of probabilities that the accused has made good the proposition that, as to the first count in the indictment, she is not guilty by reason of mental illness" (by reference to s 38 of the Mental Health (Forensic Provisions) Act). 32I should remind myself in accordance with s 37 of the Mental Health (Forensic Provisions) Act of the legal and practical consequences of finding Ms Crispe not guilty by reason of mental illness. I am aware of the kinds of orders which I can make under s 39 of that Act and of the role of the Mental Health Review Tribunal, especially with respect to forensic patients and what that tribunal needs to consider if it is to release a person into the community. I am not satisfied on the balance of probabilities that Ms Crispe did not know the physical nature of the act that she was doing. However, given the evidence concerning what happened on the day, the accounts given by various witnesses, the evidence, although indirect, of the history of her mental health and the opinions of Drs Furst and Allnutt, I am satisfied on the balance of probabilities that, by reason of mental illness, at the time that she stabbed Phillip Crispe, Ms Crispe was not able to appreciate the wrongness of what she was doing. She could not reason about what she was doing with a moderate degree of sense and composure so as to realise that it was wrong, having regard to the everyday standards of reasonable people. 33Accordingly, in accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990, given the evidence on the trial, I am satisfied that Ms Crispe was mentally ill so as not to be responsible according to law for her actions at the time when the act was done. 34I am satisfied beyond reasonable doubt that she did the act charged in count 1 in the indictment but I am satisfied on the balance of probabilities that she was mentally ill at the time and I return a special verdict that she is not guilty by reason of mental illness.