Supreme Court New South Wales Medium Neutral Citation: R v MB (No. 2) [2014] NSWSC 1755 Hearing dates: 24, 25, 26, 27 and 28 November; 1, 2, 4 and 5 December 2014 Decision date: 11 December 2014 Before: Bellew J Decision: On the limited evidence available, I find that the accused committed the offence charged, namely that on 18 November 2010, at North Strathfield in the State of NSW, she did murder OB. Catchwords: CRIMINAL LAW - murder - special hearing where accused found unfit to be tried - accused alleged to have murdered 6 month old daughter by deliberately drowning her - where accused held a belief that her daughter had a genetic abnormality - evidence of accused expressing a desire to rid herself of her daughter - evidence of absence of affection by the accused towards her daughter - evidence of lack of bonding between the accused and her daughter - evidence of expressions by the accused of resentment regarding the birth of her daughter - evidence of accused having accessed internet articles regarding death of infants, drowning and sudden cardiac death - Crown case circumstantial - where defence of mental illness not available - elements of murder established CRIMINAL LAW - murder - infanticide - where evidence that accused had a disturbed mind as a consequence of prodromal symptoms of schizophrenia at the time of the commission of the offence - whether that disturbed mind was by reason of the accused not having fully recovered from the effect of giving birth to her daughter - where the expert evidence was that the accused's disturbed state was referable to a number of factors - onus of proof - infanticide negated CRIMINAL LAW - murder - partial defence of substantial impairment - where impairment made out - where impairment not so substantial as to warrant liability for murder being reduced to manslaughter EVIDENCE - Lies - Consciousness of guilt - Where accused gave conflicting accounts of events surrounding the death of her child - Where medical evidence supported a conclusion that provision of conflicting accounts was a manifestation of disturbed mind - Whether evidence should be regarded as lies exhibiting a consciousness of guilt WORDS AND PHRASES - "effect of giving birth" Legislation Cited: Crimes Act 1900 (NSW) Criminal Code Act 1974 (PNG) Mental Health (Forensic Provisions) Act 1990 (NSW) Infanticide Ordinance 1953-1956 (PNG) Cases Cited: Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 Burrell v R [2009] NSWCCA 193 Doney v R [1990] HCA 51; (1990) 171 CLR 207 Edwards v R [1993] HCA 63; (1993) 178 CLR 193 Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22 Morgan v Attorney-General of the State of Queensland (1986) 24 A Crim R 342 R v Bilick and Starke (1984) 36 SASR 321; (1984) 11 A Crim R 452 R v Bretherton [2013] NSWSC 1036 R v Heyde (1990) 20 NSWLR 234 R v JMR (1991) 57 A Crim R 39 R v Lane [2011] NSWCCA 157; (2011) 221 A Crim R 309 R v Lodhi [2006] NSWSC 672 R v MB (NSWSC, 6 February 2014 unreported) R v Micaleff [2002] NSWCCA 480; (2002) 136 A Crim R 127 R v Ray (2003) 57 NSWLR 616 R v Sutton (1986) 5 NSWLR 697 R v Trotter (1993) 35 NSWLR 428 R v Yihwai and Aku [1963] PNGLR 40 Saffron v Director of Public Prosecutions; Allen v Director of Public Prosecutions (1989) 16 NSWLR 397 Vickers v R (1975) 61 Cr App R 48 Zoneff v R [2000] HCA 28; (2000) 200 CLR 234 Texts Cited: Nil Category: Principal judgment Parties: Regina - Crown MB - Accused Representation: Counsel: Ms N Noman SC - Crown Mr R Webb - Accused Solicitors: Director of Public Prosecutions (NSW) - Crown Nyman Gibson Stewart - Accused File Number(s): 2011/149163 Publication restriction: Nil Judgment INTRODUCTION 1On 24 November 2014 MB ("the accused") pleaded not guilty to an indictment alleging that on 18 November 2010, at North Strathfield in the State of NSW, she murdered her daughter (to whom I shall refer as OB) who was then aged 6 months. 2On 6 February 2014 Barr AJ found the accused unfit to be tried: R v MB (NSWSC 6 February 2012, unreported). On 10 July 2014 the Mental Health Review Tribunal determined, for the purposes of s. 16 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"), that the accused did not meet the criteria for fitness to be tried and that on the balance of probabilities that situation would continue, and the accused would not become fit during the 12 month period following the finding of unfitness. 3In these circumstances, the matter has come before me as a special hearing pursuant to s. 19 of the Act which is in the following terms: 19 Court to hold special hearing after advice received from Director of Public Prosecutions (1) If the Court receives a notification of a determination from the Tribunal under section 16 (3), 45 (3) or 47 (5) that a person will not, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Court: (a) is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and (b) is to conduct a special hearing as soon as practicable unless the Director of Public Prosecutions advises that no further proceedings will be taken. (2) A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged. (3) If the Director of Public Prosecutions advises the Court under subsection (1) (a) that no further proceedings will be taken in respect of the offence, the Director of Public Prosecutions is also to give that advice to the Minister for Police. (4) Subsection (1) does not apply if the Court has already held a special hearing in relation to the offence concerned. 4Pursuant to s. 21A of the Act a special hearing is to be conducted by a judge alone unless an election is made by either the Crown or the accused that there be a jury. No such election was made by either party in the present case. 5Pursuant to s. 22(1) of the Act the following verdicts are available to be returned: (i)that the accused is not guilty of the offence charged; (ii)that the accused is not guilty on the grounds of mental illness; (iii)that on the limited evidence available the accused committed the offence charged; and (iv)that on the limited evidence available the accused committed an offence available as an alternative to the offence charged. 6As to (iv) above, manslaughter is an available verdict given that the accused has been indicted for the offence of murder. AN OVERVIEW OF THE CROWN CASE 7OB was born on 21 April 2010 to the accused and her husband (to whom I shall refer as "RB"). On 24 June 2010 OB was examined by Dr Con James, Consultant Paediatrician. The accused had previously expressed concern about the presence of small skin tags near OB's ears, and Dr James arranged for a renal and bladder ultrasound to be performed in order to exclude any abnormalities. During the consultation, Dr James also raised the question of OB having proximal limb shortening, a possible indicator of a condition known as achondroplasia, commonly referred to as "dwarfism". Dr James informed the accused that although he did not believe that OB was suffering from that condition, he considered it appropriate that an x-ray be conducted to exclude it. 8The accused and OB returned to see Dr James on 7 July 2010, at which time Dr James reassured the accused that both the ultrasound and x-ray were normal. He suggested a follow up appointment in several months. 9Despite Dr James' reassurances, the accused displayed continuing anxiety about OB. She commenced researching achondroplasia (and related conditions) on the internet, from which she apparently learned that x-rays may not be conclusive in terms of excluding the condition. As a result of a follow up appointment with Dr James, a skeletal survey was arranged to further investigate the possibility of proximal limb shortening. At that time there was also some discussion about OB having a flat nasal bridge and frontal bossing (or in other words, a protruding forehead). 10The skeletal survey demonstrated no abnormality. Despite this, the accused remained highly anxious, apparently unconvinced that OB had no deformity. Dr James became concerned about the accused's mental health and its effect upon her ability to bond with OB. As a consequence, he referred the accused to Dr Anne Turner, the Head of Medical Genetics at the Sydney Children's Hospital. Dr Turner also concluded that there was no evidence of any abnormality. The accused was not accepting of that opinion and continued to express concern about the possibility of OB having a genetic disorder. Dr Turner arranged for further testing and the accused was referred to Dr Betts, psychologist, and Dr Rickard-Bell, psychiatrist. 11At subsequent consultations, Dr James again expressed the view that OB was a normal, healthy baby. Again, the accused was not accepting of his opinion. She was admitted to hospital on the evening of 19 October 2010 because she felt the need to undertake psychiatric treatment. Having stayed one night in hospital she expressed the wish to go home and because she was a voluntary patient she was permitted to leave. On 26 October 2010 the final testing conducted on OB was reported as normal. 12During the period leading up to OB's death the accused was in contact with a number of her friends. In the course of conversations with them, she expressed concerns about OB being less than "perfect", and about losing her husband because of the failure to give him "a perfect child". She also made references to the prospect of jumping off a cliff with OB, and throwing her in the bin, and expressed a feeling that dealing with a long term illness was preferable to having to "deal with a dwarf". 13At 12:10pm on 18 November 2010 the accused called 000. In a conversation extending over 10 minutes and 53 seconds, she told the operator that OB was in the bath and that she had "left her in there just to get the shampoo and she fell out of the seat". Upon enquiry, the accused told the operator that OB was under water. The operator repeatedly asked the accused to retrieve OB, or let the water out of the bath. The accused stated that she could not do either. When ambulance officers arrived at approximately 12:16pm they found OB floating in the bath, exhibiting no signs of life. She was not able to be revived. A crime scene was established at the accused's home. Amongst the items retrieved from the bath was a purple seat referred to as a "Bumbo seat", which carried with it a warning that it should not be used in water. 14The accused was admitted to hospital on the evening of 18 November 2010. At the hospital, she told her husband that what had happened was an accident, and that she had left OB in the chair to retrieve a jump suit. When speaking to police, the accused said that her mobile telephone had rung, she had taken OB out of the bath, and had then put her back in the bath and left her there to retrieve a face towel. She said that when she came back OB was already in the water. Later that evening, when providing a history to a nurse, the accused said that she had fed OB and bathed her to clean her up. She said that she had placed her in the bath chair and had left her there whilst she went to get a face flannel, and that when she returned OB was face down in the water. 15Post mortem examination of OB determined that the cause of her death was consistent with drowning. Injuries, the appearance of which was consistent with having been inflicted by something sharp such as a fingernail, were observed to be present on OB's head. 16As part of the investigation of OB's death, police installed listening devices in the accused's home, along with the home of her mother (to whom I will refer as SG). In the course of recorded conversations, the accused indicated (inter alia) that she had never bonded with OB due to the ongoing medical tests which were being undertaken, and that she wished she had never given birth to her. 17The accused was arrested and charged with OB's murder on 6 May 2011. She has been on bail since that time. It is the Crown case that she killed OB, either by intentionally drowning her in the bathtub intending to kill her or inflict grievous bodily harm upon her, or by leaving her in the bathtub for a sufficient period of time to allow her to fall forward into the water, and thereafter failing to remove her from that vulnerable position. In the alternative, the Crown relies on manslaughter by way of gross criminal negligence. An issue of infanticide is raised on the evidence, as is the partial defence of substantial impairment. THE EVIDENCE The birth of OB 18Dr Morris was the accused's treating gynaecologist and obstetrician between 2009 and 2010. The accused first consulted him on 27 April 2009. She had learned on 26 February 2009 that she was pregnant but that pregnancy miscarried at 7 weeks gestation (Ex D p. 48). 19The accused then fell pregnant with OB and saw Dr Morris on 16 September 2009 (Ex D p. 48). Dr Morris confirmed the viability of the pregnancy by ultrasound (Ex D p. 49). He described the accused's reaction to being told of the viability of her pregnancy as "appropriate" (Ex D p. 52). He raised with her the availability of a test to determine the presence of Downs Syndrome and although he did not arrange that testing, the accused did so herself (Ex D pp.52-53). The testing was carried out on 14 October 2009 by Dr Kesby, who reported that the results indicated an increased risk of Downs Syndrome. As a consequence, further testing, known as "CVS" testing, was carried out (Ex D pp. 53-54). The result of that testing was normal and this was discussed between the accused and Dr Morris at a later consultation on 28 October 2009 (Ex D p. 55-56). 20On 6 October 2009 the accused had an unscheduled appointment with Dr Morris as a result of an increase in bleeding and cramping. After examination and an ultrasound, Dr Morris reassured the accused of the viability of her pregnancy. OB was delivered by Dr Morris at Royal Prince Alfred Hospital on 21 April 2010 (Ex A para. 8). 21After OB was born, RB assumed the role of being "the principal bather" (T14 L49) and would generally bath OB in the evening after he came home from work (T31 L22-27). After OB had outgrown a baby bath RB decided to start bathing her in the bath located in the bathroom of his home (T15 L21-22). RB gave evidence of a "Bumbo" seat in which OB would be seated when bathed (commencing at T15 L38). He explained that the seat was not stable and that although it created a type of vacuum when pushed down in the water, it would "pop up" unpredictably (Ex A para. 20; T31 L33 and following). The seat carried a warning against use in the bath (Ex AW para. 7). RB explained (commencing at T16 L14) that he had told the accused not to leave OB in the bath alone and said that he himself had not done so (T16 L48-49). He described the accused (commencing at T32 L11) as absent minded, although he said that her presentation in this respect in 2010 was "roughly the same" as it was at any other time. 22After OB was born Dr Morris saw her on 8 June 2010 (Ex D p. 67) and referred her to Dr James for what was described as a "routine" purpose (Ex D p. 67). Dr Morris had no contact with the accused after 8 June 2010. 23Leaving aside the matters which are discussed in detail below, the only other documented difficulty reported by the accused following OB's birth was on 27 April 2010, when she reported problems associated with breast feeding. A home visit was made on 13 May 2010 (having been rescheduled from an earlier date) by Keryn Ferguson, a Child and Family Health Nurse. The problem was discussed and there were no issues which warranted a follow up visit. The accused's initial concerns about OB's appearance 24RB said (T14 L40 and following) that when OB was born the hospital staff noted the presence of skin tags near her ears. They were also noted by Ms Ferguson when she visited the accused at her home on 13 May 2010 (Ex E p. 3). When asked how the accused responded to the skin tags, RB said that she "just wanted to know what they were" (T14 L44). 25Josephine Dattilo, who was then a close friend of the accused, saw her in hospital within a couple of days of OB's birth (T87 L24-26). After the accused returned home, Ms Dattilo had a conversation with the accused in the course of which the accused said that OB "had a couple of little skin tags that she was looking into (which she) wanted ... removed because (she) didn't want her teased" (T87 L48-49). When asked whether the accused had said anything about the appearance of the skin tags Ms Dattilo said (T88 L27-28): "Well, she didn't like them. They didn't look good and she didn't want her daughter to be teased". 26Another close friend of the accused at the time, Natasha Di Nunzio, was overseas when OB was born. When she returned approximately two weeks later, she went to the accused's home and saw her and OB. She said that on that occasion the accused (commencing at T74 L33): "... was preoccupied with skin tags. And I said not to worry; I just wanted to have a look at her. So she walked me into the bedroom to have a quick look at her. ... She mentioned that she had them on her ears and how soon could she how soon can a child have plastic surgery to remove them. ... I just said not to be stupid". 27The evidence of Ms Dattilo and Ms Di Nunzio is generally consistent with evidence of RB (Ex A para 9) that the accused enquired as to the age at which the skin tags could be removed. 28The evidence of SG (the accused's mother) was that the presence of skin tags on OB's ears was "not a major concern" (Ex. B para. 12). Even if that was the position from SG's perspective, I am satisfied that it was not so from the perspective of the accused who, as I have outlined, displayed significant concern to Ms Dattilo and Ms Di Nunzio. The initial consultation with Dr James - 24 June 2010 29Dr James is a Consultant Paediatrician who saw OB on seven occasions between 24 June 2010 and 28 October 2010. He said (Ex. F1 para. 5) that at all times, OB presented as being well cared for, well nourished, and interactive. 30Dr James said (Ex F1 para. 8) that at the time of OB's initial examination, there was a clinical suggestion of proximal limb shortening. He arranged a renal and bladder ultrasound to exclude any abnormality associated with the skin tags, along with an x-ray of OB's right upper limb to investigate the suggestion of proximal shortening. Dr James explained (Ex F2 para. 5) that when he saw OB and the accused on 24 June 2010 he did not use the term "dwarfism", but explained that limb shortening can sometimes be associated with achondroplasia. He told the accused that he did not believe that OB was suffering from achondroplasia but that an x-ray would be valuable to exclude it. 31The suggestion that OB may have had limb shortening caused the accused immediate and significant concern, compounding that which had previously arisen in relation to OB's skin tags. RB described the accused as being "in shock" after the possibility of limb shortening being raised and explained that the accused commenced to research the condition on the internet (Ex A para. 9). He described the accused (commencing at T19 L40; T 28 L29) as being "concerned that (OB) was a dwarf". The conclusion that the accused became distressed and anxious at the suggestion that OB was a dwarf is supported by the evidence of SG, who described the accused as being "shocked and worried that this might be leading to a serious syndrome" (Ex B para 12). 32Such a conclusion is similarly supported by Ms Dattilo. The accused told Ms Dattilo that she had visited a Paediatrician who had raised the question of OB having limb shortening and dwarfism (T88 L35-48). Ms Dattilo reassured the accused that "everything would be okay" (T89 L2). Similarly Joanne Dinov, another close friend of the accused, visited the accused following OB's birth. When asked whether there was any mention by the accused about OB having any abnormality Ms Dinov said (T111 L20): "Something to do with her limbs and the possibility of her being a dwarf." 33Ms Dinov said that the accused told her that she had been undertaking research on the internet as a result of her concerns (T111 L31-50). The test results of 6 July 34On 6 July 2010 an x-ray of OB's right upper limb, and a renal ultrasound, were conducted and reported as normal. The second consultation with Dr James - 7 July 2010 35Dr James examined OB again on 7 July 2010 at which time he reviewed the results of the x-ray and renal ultrasound. He reassured the accused that no abnormality had been detected, and that there was no evidence of proximal limb shortening. He explained that this meant that OB did not have achondroplasia (Ex F2 para. 6). He suggested a clinical review in several months' time and advised the accused that OB's skin tags should be surgically removed before she reached 12 months of age. At that stage, at least from Dr James' perspective, nothing further was required. The third consultation with Dr James - 14 July 2010 36On 14 July 2010, the accused telephoned Dr James' surgery and spoke with his receptionist, Ms Angela Tsamtseres. She told Ms Tsamtseres (Ex G paras. 7 and following) that her internet searches had revealed that x-ray results were not conclusive in terms of excluding the possibility of achondroplasia and that she wanted to have a genetic blood test conducted. She said, in particular: "Please I need (Dr James) to refer me to a Geneticist. I feel when I look at her, I'm seeing the signs of a dwarf". 37Ms Tsamtseres then spoke with Dr James and an appointment was arranged for later that day (Ex G para 9). In respect of the examination of OB on that occasion Dr James stated (Ex F1 para. 10): "OB appeared well. Her length was 58cm and head circumference 38.7cm both between the 25th and 50th percentile and weight 5.71kg between the 50th to 75th percentiles. A skeletal survey was ordered in view of a (sic) impression of slight proximal limb shortening and flat nasal bridge and frontal bossing." 38He further stated (Ex F2 para. 8): "The mother told me certain things about genetic testing and how she wanted more detailed testing to rule out Achondroplasia which she referred to as "dwarfism". I recall she told me that she had seen photos on the internet. I believe the accused raised the issue of the frontal bossing to me. I then made an observation of a flat nasal bridge and wrote the word "prominent" which would have meant prominent forehead. This is the same as frontal bossing. I ordered a skeletal survey. I ordered this not because I believed OB had Achondroplasia but to placate the accused. I told the accused on every occasion that OB was normal and did not have Achondroplasia". 39Ms Tsamtseres stated that after that consultation she had spoken to the accused who said that she was feeling better (Ex G para. 10). 40According to RB, the reference to the possibility of frontal bossing rendered the accused's emotional condition worse (Ex A para. 10). That assessment is supported by what followed over the next several months. The skeletal survey - 20 July 2010 41A skeletal survey performed on 20 July 2010 showed no evidence of achondroplasia, nor skeletal dysplasia (Ex F3). The fourth consultation with Dr James - 21 July 2010 42Dr James examined OB on 21 July 2010 and noted that the skeletal survey was reported as normal. However he also noted (Ex F1 para. 11): "... mother was anxious ++, convinced OB has Achondroplasia and is crying today - this will affect maternal bonding." 43Dr James explained (Ex F2 para 9) that whilst it was not uncommon for first time mothers to be anxious, and to require reassurance, the accused seemed convinced that OB had achondroplasia and was not normal, despite his attempts to reassure her to the contrary. In the circumstances, Dr James referred the accused to Dr Anne Turner, the Head of the Department of Medical Genetics at the Sydney Children's Hospital (Ex F1 para. 10). His letter of referral was in (inter alia) the following terms (Ex F2 para. 10): "I suspect this baby is normal but mother is "hysterical" with concern and is convinced her baby has (Rhizomelic shortening) and needs genetic testing. Please see her asap or maternal bonding will suffer." The first consultation with Dr Turner - 21 July 2010 44Dr Turner first examined OB on the afternoon of 21 July 2010 in the presence of Dr Kathy Wu, a trainee Geneticist. Dr Turner described OB's appearance as being that of a "normal healthy baby .... of three months of age" (Ex H1 at paras. 4-5). She stated (commencing at para. 9 of Ex H1) that she reassured the accused that OB was a normal baby. In response to a specific query, she reassured the accused that OB's limb length was normal and that there was no indication of any bone disorder on x-ray. Dr Turner also explained to the accused that based on her clinical examination and the x-ray results, she was able to exclude any diagnosis of achondroplasia. 45Despite this, the accused remained concerned and Dr Turner agreed to conduct genetic blood tests to further exclude achondroplasia. Dr Turner also offered to forward OB's x-rays to Professor David Sillence, a Genetic Bone Disease expert, for further reassurance. 46Dr Wu described the accused as appearing "very anxious about the possibility of an underlying genetic condition in OB". She confirmed the opinion of Dr Turner that there were no significant indicators of a genetic problem (Ex J para. 5). She also confirmed that the accused's degree of anxiety was so great that further testing was arranged to provide additional reassurance. In doing so, Dr Wu recalled that the accused had said words to the effect: " ... every time I look at her, she looks like a dwarf.'" 47On 28 July 2010 Dr Turner wrote to the accused and said (inter alia) (Ex H2): "On examination, OB was an alert and engaging baby who was constantly vocalising. Her growth parameters were all within normal range. She indeed had excellent tone and strength in her arms and legs. We noted the skin tags on her ears; otherwise her ears were normally formed and placed. We could appreciate your concerns about her flat nasal bridge and upturned nose, however, there (sic) are indeed subtle differences that may well be baby features or familial trait. We reviewed the skeletal survey with Professor David Sillence, a world authority on skeletal dysplasias, who thought OB's skeletal survey was completely normal, with no evidence of Achondroplasia or Hypochondroplasia. We discussed that skin tags on ears are very common and likely to be an isolated variation in OB given her normal growth and development, rather than having a genetic underlying cause. For your reassurance and given that you are planning your second pregnancy in the near future, we have arranged for OB to have a blood sample taken for chromosome analysis, MLPA and genetic testing for skeletal dysplasia. We have tentatively arranged a follow-up appointment on 30th August, by which time we should have the above testing results. It will be helpful if OB's father can be present at our next appointment and if you can also bring some family photographs". The accused's presentations to Dr Soo 48Dr Soo, a General Practitioner, saw the accused on 26 July 2010 when she presented with anxiety following the recent death of her grandfather. Dr Soo reported (Ex L para. 6): "The accused was already on Xanax and was given a repeat script." 49It is not clear from Dr Soo's statement who prescribed Xanax prior to this time. 50On 11 August 2010 the accused again presented to Dr Soo and complained of anxiety. Dr Soo reported (Ex L para. 7): "From my notes I noted that her baby daughter had short limbs and was undergoing genetic testing. ... As a result of this consultation I prescribed her Zoloft tablet 50 mg, 1 at night". The accused's conversations with friends 51I have already made reference to the accused having contact with a number of her friends in the period shortly after OB's birth. That contact continued over the ensuing months, right up to the time of OB's death. In the course of that contact, the accused not only expressed her concerns about OB but made various statements regarding the effect of OB upon her life. But for one discreet matter to which I have referred below, there was no challenge to the evidence of the statements made by the accused to her various friends. 52Ms Di Nunzio described the accused as being "preoccupied that there was something wrong with OB" (T75 L23). When asked what she meant by "preoccupied" Ms Di Nunzio said (T75 L28-39): "... she thought there was something wrong with her and she keeps saying that "there's something wrong with her, I know"... She was very preoccupied that there was a mutation or she'd been taking her for several tests. She was preoccupied with what the results would be. So the conversations were normally about why this was happening to her and why did she deserve this to happen to her and to her husband." 53When asked whether the accused had expressed a particular concern about OB, Ms Di Nunzio responded (T76 L3-6): "She thought that she was dwarf, that possibly that the results would indicate that she had dwarfism. ... Basically ... she felt her life with her husband was affected because of the state of the baby, and she felt guilty that she'd produced a baby that could possibly have something wrong with it, and she mentioned that her husband had said to her to to leave, gave her the opportunity to leave, and he'll look after the baby and she can get on with her life. And she said to me that, you know, she was happy with her marriage with her husband and why should she let this affect her marriage." 54Ms Di Nunzio said (T79 L27-47) that on another occasion the accused had told her that she "couldn't bear to look at (OB) or pick her up". When asked whether the accused had said why she felt that way, Ms Di Nunzio responded (T79 L47): "It was all to do with what she believed was wrong, was wrong with OB". 55The accused also told Ms Di Nunzio that she felt that her life had been affected by OB, and that she felt guilty that she had "produced a baby that could possibly have something wrong with it". She also questioned why she should allow any issue in relation to OB to affect her marriage (T76 L6-14). 56Ms Di Nunzio also said that the accused thought that OB's abnormalities were a "punishment" for something, although she did not know what (T80 L32-39). She described the accused, in effect, as a person who took pride in her appearance, particularly in relation to her hair and make up (T76 L32-38). 57Ms Dattilo became aware that the accused had consulted a Paediatrician, and spoke with her on a weekly basis about the tests which were being carried out. She said that apart from the accused having expressed a fear that OB may be a dwarf, she had also expressed concerns about the shape of OB's forehead as well as the shape of the bridge of her nose (T91 L11-24; T94 L31-37). 58In relation to the accused's concerns about OB's possible dwarfism Ms Dattilo gave the following evidence (T93 L12-20): "Q. In relation to MB raising her concern about OB being a dwarf, did she say anything to you about how she would react if OB was a dwarf? A. She would have to get rid of her. Q. Can you remember how she said that or what words she said? A. She said that she didn't want she had the perfect husband and the perfect job, and she didn't want the quality of her life to diminish in any way. She also expressed that she had a fear of dwarfs, and that she would have to get rid of her, and apparently she had had a discussion with-" 59According to Ms Dattilo, this was said in a conversation in about September 2010 (T100 L48 - T101 L24). Ms Dattilo gave a lengthy statement to the police on 19 April 2011. She gave evidence in the committal proceedings in November 2012. She made no reference, on either occasion, to the accused saying that she would have to "get rid" of OB. When asked why this was so, she said (T99 L36 - 42): "...It was quite daunting being at a police station for the first time and having to give such a long statement. We have a very close friendship, best friends one could say, and there were many things that have gone through my mind in the last four years of conversations that we had had. We sometimes there were days that we had more than one conversation in a day, conversations just about every day. It's very difficult to remember absolutely everything. " 60In para. 21 of her statement to police Ms Dattilo had said (T102 L33-37): "I recall a conversation with her when the genetic testing was going on where she said words to the effect 'if she is a dwarf, I told RB that OB would have to be taken away' ". 61The evidence of Ms Dattilo (T102 L23 - T104 L12) was that the conversation in which the accused had said that she would have to "get rid" of OB was the same conversation in which she had referred to OB being "taken away". When it was put to her that what the accused had said was that OB would have to be "taken away" as opposed to having to "get rid" of her, Ms Dattilo said: "She did say that as well, throughout that long conversation, because yes. I know 100 per cent that's what she said". 62When asked when this conversation had come into her mind Ms Dattilo said (T105 L48 - T106 L3): "It always pops into my mind here and there. You had so many conversations pop into my mind, I am sure there are other things which I don't remember today or, you know, that you kind of sit back at night and you think. There were things running through my mind last night, conversations, several conversations. Six and a half months is a long time of conversation between very close best friends." 63Ms Dattilo denied (T106 L21-34) that her evidence that the accused had said she would have to "get rid" of OB was a lie. Having observed Ms Dattilo give evidence, I did not form the impression that she was a person who would deliberately lie. On the contrary, she presented as somebody who appeared to be doing her best to give truthful evidence. However, it was apparent from her demeanour in the witness box that the process of giving evidence was stressful for her, coming as it did against a background of a long friendship with the accused which, I infer, may have now ended. I can also well understand that the procedure of making a lengthy statement was, for the reasons Ms Dattilo explained, a daunting and difficult experience. 64However even when full weight is given to those circumstances, her omission of any reference, both in her statement and in her evidence at the committal hearing, to the accused having said that she would have to "get rid of" OB, defies explanation. This is particularly so in circumstances where, in making her statement, she had alluded to the fact that the accused had made reference to OB having to be "taken away", this being something that she maintained was said in the same conversation as that in which the accused had referred to "getting rid" of OB. 65In these circumstances I am not able to accept that the accused told Ms Dattilo that she would have to "get rid of" OB. However, there was no challenge to Ms Dattilo's evidence that the accused had said that if OB was a dwarf she would have to be "taken away". I am satisfied that this was said by the accused. 66Ms Dattilo was also asked about conversations she had had with the accused about the accused's ability to bond with OB (T93 L45-49): "Q. Did MB say anything to you about how she responded to OB? A. She said that OB wasn't responding, and that she was a frittata. Q. Frittata? A. Yes. Which is which is basically in Italian an omelette." 67Ms Dattilo also gave evidence of the accused and OB attending her own son's birthday party in September 2010. She described (T94 L17-29) OB being dressed that day in a "very thick hooded suit which concealed the presence of the ear tags". The party occurred in September 2010 at a time when, according to Ms Dattilo, the weather was "very warm" (T94 L12). Ms Dattilo described the accused as a person who was always meticulous in her presentation (T96 L40-41). The obvious inference to be drawn from these parts of Ms Dattilo's evidence is that the appearance of OB's skin tags remained an issue for the accused at that time. 68Ms Dinov said that the accused had expressed concern to her "many, many, many times" about OB having limb shortening (T112 L12-16) and about the possibility that it was indicative of achondroplasia. The accused went to the extent of asking Ms Dinov for a photograph of her son for the purposes of comparing his limbs with those of OB. Ms Dinov also said that the accused had expressed concerns about OB's forehead as well as the shape of the bridge of her nose (T112 L31-37). Ms Dinov was aware that OB was undergoing genetic testing (T112 L42). 69Ms Dinov said that on the occasions when she visited the accused after OB's birth she saw little in the way of affection or bonding between them (T113 L23-24; T113 L45-47; T115 L10-14) which the accused had attributed to "the doctors" (T115 L20). She also gave evidence (T115 L44-50) that when walking with the accused in a local park, the accused would make reference to "ferrals" having "normal children", and questioning why "God punished her". The referral to Dr Betts 70In the days following Dr Turner's initial examination, the accused made several enquiries about the test results (Ex H1 para. 14). On 10 August 2010 she called and spoke with Dr Wu and expressed her ongoing concern that OB had a genetic disorder. Dr Wu said (Ex J para. 8): "On most occasions she sounded very distressed and anxious about the genetic testing results...Because I could hear in her voice that she was not coping, I spoke to the lab to try and speed up the results of the genetic testing. One of the phone calls I recall having with the accused was that she was feeling so anxious on this particular occasion that she could not bring herself to come to the appointment because of fear that she would hear something bad." 71At about that time, Dr Turner and Dr Wu decided that the accused's levels of anxiety warranted a referral to Dr Betts, the Deputy Head of Psychology at the Sydney Children's Hospital (Ex H1 at para. 15). Dr Wu asked Dr Betts to assist in the accused's psychological management, with particular reference to anxiety associated with her concern that OB had a medical syndrome such as achondroplasia (Ex C para. 6). 72On 11 August 2010 Dr Betts contacted the accused by telephone. The accused told him that she was coping adequately and declined Dr Betts' offer of an appointment. When asked to describe the accused's state of mind at that time Dr Betts said (T50 L8-11): "I felt she was anxious and I note in my email that I say that MB spoke to me rather than and that I listened, and I mentioned about energy and a lot and she admits to a lot of anxiety. So I did form the opinion that she was very anxious, but that she was coping." 73On 18 August 2010 the accused called Dr Betts and asked him to facilitate her admission to a psychiatric facility in the event that the results of OB's genetic testing evidenced an abnormality. She also told Dr Betts on that occasion that she was having "a lot of difficulty" coping with her anxiety (T50 L33-38). When pressed by Dr Betts about how she felt she would react if OB was found to have achondroplasia, the accused responded that "she wouldn't be able to cope at home with the baby etc", but did not elaborate further (T50 L43-44). Dr Betts described the accused's state of mind at the time in the following terms (at T51 L9-12): "... she was extremely anxious and ... she needed further treatment for her anxiety. I did also ask relevant questions about depression, the symptoms of depression, and she denied the symptoms of depression but openly admitted to anxiety." 74Although the accused denied any feelings of depression, she spoke with Dr Betts about her stress levels (T51 L39-43). Dr Betts explained (at T52 L3-5) that the accused cited, as the cause of her stress, the possibility that OB had dwarfism. He formed the view that the accused should be referred to a psychiatrist and contacted Dr Turner seeking a referral to Dr Rickard-Bell (Ex H1 para. 16) with whom an appointment was arranged (Ex C para. 8). Dr Betts took that step in light of the accused's anxiety (T52 L36-50). 75Dr Turner's referral to Dr Rickard-Bell made reference to the fact that the accused was anxious regarding the results of OB's genetic testing and was either not responding to reassurances, or was irrational when doing so (T171 L46 - T172 L4). The involvement of Carolyn Shalhoub 76Ms Carolyn Shalhoub, the Senior Genetic Counsellor at the Sydney Children's Hospital, became involved in the accused's management at the request of Dr Turner because of concerns about the accused's extreme levels of anxiety (Ex K para. 4). Ms Shalhoub telephoned the accused on 19 August to inform her that the genetic testing for achondroplasia had detected no abnormality. The accused responded (Ex K para. 5): "I have been living in fear for several weeks, even prior to seeing genetics, my anxiety had begun when I first heard from the paediatrician that there was a suspicion of shortened limbs and bossed forehead. The anxiety that I have been experiencing is a reaction to the uncertainty of the situation and that I could ultimately cope with bad news but I just can't bear waiting for the results. I just want to know as soon as possible if there is condition in OB so that she can start any appropriate treatments etc." 77When Ms Shalhoub asked the accused whether she had experienced stress or anxiety in the past, the accused responded (Ex K para. 6): "No, this is definitely the scariest thing I have ever had to face...I have never experienced depression but maybe I am beginning to feel a little depressed lately as a direct result of all of the anxiety, but no more than that." 78When asked whether she thought that she would benefit from consulting a psychiatrist the accused responded (Ex K para. 7): "I don't think I need to, now that the result has come back normal, but I am open to this in the future if the anxiety does not settle." 79Despite these statements, the accused subsequently telephoned Ms Shalhoub and expressed her concerns about OB, from which it was evident to Ms Shalhoub that the accused's anxiety remained. After further discussions, and in light of the accused's continuing anxiety, it was agreed that the appointment with Dr Turner scheduled for 30 August 2010 should be brought forward to 26 August 2010. This was because Dr Turner was concerned about the accused's levels of anxiety, and thought that an earlier consultation would allow an opportunity to reassure her about the absence of any abnormality in OB (Ex H1 para. 17). The second consultation with Dr Turner - 26 August 2010 80When Dr Turner saw the accused, OB and RB on 26 August 2010, she found that all of OB's parameters were well within normal limits. Comparison with measurements taken on the previous occasion indicated normal growth during the intervening period (Ex H1 para. 21). Dr Turner reassured the accused and RB that OB was growing and developing normally and that no abnormalities were apparent on physical examination. The accused responded by telling Dr Turner that she felt reassured (Ex H1 para. 22). At that time Dr Turner mentioned that a final test, known as a "CGH microarray", had been ordered. She explained that this test was designed to detect chromosomal abnormality but said that she expected the results to be normal. Ms Shalhoub was in attendance at this appointment. She said that RB had expressed the view that he "fully believed" that OB had no abnormality but that the accused had not been able to see that this was the case. She said that the accused had said that OB's "problem" had commenced prior to her birth (Ex K para. 9). 81Shortly after the appointment, the accused telephoned Ms Shalhoub and said (inter alia) (Ex K para. 10): "I wanted to talk to express my on-going concerns about OB. I was not able to express my concerns in the appointment with my husband present. I feel that he does not believe that there is anything wrong with OB and that he is tired of hearing my concerns. RB is a good man and I do not want to cause any further friction to the relationship, by raising my concerns in the appointment. The car trip home would have been very difficult if I had done so. Despite all the evidence dismissing achondroplasia, I still feel that OB has dwarfism. I have measured and compared the lengths of the limbs of all the babies in my mother's group and am convinced that OB's is abnormal. I have also compared her hands and feet to the other babies and again am sure that they are smaller...OB's ears are different to mine and RB's which must be a sign that there is something wrong; OB's nasal bridge is depressed; her eyes are blue which again must be a sign of a problem as RB and I have brown eyes. I really feel that something isn't right. My mother's intuition is telling me so." 82When asked by Ms Shalhoub whether or not she had ever had any contact with a dwarf, the accused replied: "I remember a dwarf in my neighbourhood as a child, which used to considerably frighten me." The first consultation with Dr Betts - 26 August 2010 83Dr Betts met with the accused for the first time on 26 August 2010, over a period of 25 minutes. He recorded (inter alia) the following (Ex C para. 10): "...(the accused) and her husband RB attended with their daughter OB. They had just come from their appt. with Dr Anne Turner and she said she was reassured by what they had said - normal results. (The accused's) presentation today was as she had been over the phone to me - anxious, a tendency not to listen to what is said but to repeat statements to justifying (sic) the 'normality' of her anxiety. I found I had to interrupt her politely but firmly many times to be able to say what I needed to, which was some Psychoeducations on anxiety and how it is best dealt with and reduced. I also warned both MB and RB that with the kind of anxiety, a temporary reassurance does not take away the worries but they tend to rebound unless the underlying reasons for the anxiety are addressed and treated. She told me she had had a scary experience when she was a child - a dwarf lived in their neighbourhood and whenever she saw this person she ran away screaming. Suggested Dr Chris Rickard-Bell would advise on treatment. Appt. for next Tuesday..." 84Dr Betts said (T59 L6-21) that when he spoke with the accused she "justified the normality of her anxiety". He said that he did not consider that the accused was exhibiting delusional thinking, but explained that when he later learned that the accused had told other people she was not reassured by the test results, he raised that possibility. He agreed that if the accused was delusional such a condition would overlap with a psychosis (T61 L8-26). 85The accused told Dr Betts that she was "reassured" by what Dr Turner had told her (T54 L17-33). That, of course, was not consistent with the content of her conversations with Ms Shalhoub following the appointment with Dr Turner. As to the accused's presentation, Dr Betts said (T53 L49 - T 54 L15): "I think it was simply that she was worried that OB or had been worried that OB had a medical condition such as achondroplasia, and that was what she was trying to justify to me, the normality of mothers or parents being concerned as concerned as she had been about that possibility." 86On the following day, 27 August, Dr Betts spoke with Ms. Shalhoub (T54 L39 and following) who informed him of her conversation with the accused on the previous day (Ex H1 para. 23). This raised a question in Dr Betts' mind about whether the accused was fit to care for OB. However, in circumstances where the accused had told him that she would never hurt OB, and where she denied any thoughts of harm towards herself (T58 L21), Dr Betts concluded that there was no indication that the accused wished, or intended, to harm OB or herself (T62 L11-45). That assessment is generally consistent with evidence given by RB, who said that the accused "wanted to do everything she could" for OB (T27 L4-9) and that she took particular care in attending to everything associated with having a new born baby. It is, however, somewhat inconsistent with the statements made by the accused to Ms Di Nunzio and Ms Datillo which, as I have noted, were not challenged. 87Dr Betts remained of the view that the accused required psychiatric intervention to treat her anxiety, and explained that he was "very worried" about her (T61 L35-41). He offered to expedite the forthcoming appointment with Dr Rickard-Bell but the accused declined that offer (Ex C para. 11; T56 L14). At about this time, Dr Betts had a number of telephone conversations with the accused and RB, independently of each other. When he spoke with RB, Dr Betts expressed concern about the accused's state of mind and advised RB that he should "watch her carefully" (T56 L35-39). Dr Betts said (commencing at T57 L2) that there were a number of things which caused him concern, including the accused's continuing belief that OB suffered from some type of syndrome, and a fear that the medical staff conducting the tests "may have missed something". 88On 28 August 2010 the accused called Dr Turner's secretary asking that she be provided with copies of all test results by 2.00 pm that day. Those results were provided to her. The accused complained that she was not provided with that information at the time of her consultation on 26 August, although she had not requested it at the time (Ex H1 para. 24). Later the same day, there were discussions between Drs. Turner, Wu and Betts, and Ms Shalhoub, in which Dr Turner expressed concern that the accused's anxiety, and her inability to accept reassurance, were substantially in excess of what she was accustomed to seeing. She contacted Dr Rickard-Bell to make him aware of her ongoing concerns, but it was agreed that because the scheduled appointment was only four days away, it should remain in place and not be brought forward (Ex H1 para. 25). The consultation with Dr Rickard-Bell - 31 August 2010 89Dr Rickard-Bell conducted an initial consultation with the accused over a period of 45 to 50 minutes on 31 August 2010 (T172 L16-20). Although he had planned a follow up appointment no such arrangement was made, (T172 L30-32) due to the accused having difficulties in finding someone to look after OB, and the distance between her home and Dr Rickard-Bell's consulting rooms (Ex H1 para. 27). 90Dr Rickard-Bell described the accused as "very professional in her presentation" (T172 L43) and noted that her mood fluctuated from being very anxious and tearful to reacting in a more positive way. He regarded her as "highly anxious" (T173 L27-40). He formed the view that it was likely that the accused had an obsessional personality (T174 L1-6). He could find no evidence of thought disorder or illogicality in thinking, even though some aspects of what the accused said exhibited some abnormality. When asked what was abnormal or unusual in this regard Dr Rickard-Bell responded (at T174 L18-23): "So her preoccupation about her child's her fears about her child's illness appeared to be exaggerated and indicated there was some psychiatric problem in that she had this strong preoccupation with the child's condition, perhaps dwarfism. It's a very unusual sort of preoccupation. I guess the issue is: Is this consistent with an anxiety disorder or was it reflective of something else?" 91When he asked the accused about her concerns regarding OB the accused responded that (T174 L49 - T175 L9): " ..... she was worried that the child may have dwarfism and even though she had been through testing, she still didn't feel that was conclusive and there was still a level of anxiety that the investigations were not comprehensive ... She believed that the child appeared to have shorter limbs than was normal and that there were some ear tags that can sometimes be associated with congenital defects and that she felt there was some flattening of the face." 92The accused told Dr Rickard-Bell that in addition to speaking with medical staff, she was also conducting her own research on the internet. He regarded this as a common presentation in people who were obsessional and highly anxious (T175 L11-29). 93Dr Rickard-Bell said that despite the fact that all of the testing conducted up to that time was reported as normal, the accused remained anxious about whether or not this was truly the case (T174 L28-32). The accused had indicated that she wanted to obtain the outstanding test results, and she said that the Doctors who had been investigating OB did not exhibit the same level of concern as she did (T175 L36 - T176 L2). 94Dr Rickard-Bell concluded that there was no evidence of cognitive disturbance (T174 L34-36) and he did not think that the accused's concerns about OB were interfering with her ability to care for her. On the contrary he observed that one of the accused's main wishes was to be able to care for OB as well as she could, to the point where she was over protective (T178 L7-12; T186 L32-39; T176 L4-8). 95In terms of his provisional diagnosis, Dr Rickard-Bell gave the following evidence (commencing at T176 L10): "Q. Did you in fact form an impression that what the accused had was a hypochondriacal preoccupation and overvalued ideas about OB's genetic problem? A: That was my conclusion from an initial consultation of 45 to 50 minutes where I only had the direct information of preoccupation from her and the referring letter from the geneticist, so I didn't have at that time and normally one would like to have other corroborative information from others in the person's family or other medical practitioners or mental health practitioners that she may have been involved with. So from that snapshot of her condition, that was my provisional diagnosis". 96Dr Rickard-Bell could not exclude the possibility that the accused's presentation was part of a forming or developing psychosis. Although he agreed that there were factors which accounted for the accused's anxiety, he pointed out that this was based on a single interview, or "snapshot" (T177 L19-38). 97Dr Rickard-Bell agreed that it was possible for a person to present as the accused did and descend into psychotic presentation over the ensuing days, weeks or months (T181 L47 - T182 L1). Equally, he agreed that it was possible that such a deterioration would not happen at all. He had expected that her condition would improve over a period of time with appropriate assistance and treatment (T183 L5-7). He agreed that the accused was suffering from something more than an adjustment disorder but saw no indication of the onset of schizophrenia (T184 L5-47). The fifth consultation with Dr James - 1 September 2010 98Dr James examined OB on 1 September 2010 and reviewed the earlier report of Dr Turner. He noted (Ex F1 para. 12) that the accused was "still concerned" and felt that OB's head was "too prominent". 99On examination of OB, Dr James noted her measurements and recorded that apart from some slight frontal bossing, OB had a normal skull shape. He ordered a further ultrasound and suggested that the accused provide him with photographs of herself and RB as babies for clinical comparison (Ex F1 para. 12). Dr James explained (Ex F2 para. 11) that this consultation did not focus on any suggested achondroplasia, but rather the frontal bossing. He explained that he referred OB for an ultrasound because the accused felt that OB's forehead was too prominent. He also explained that this referral represented a "further attempt to reassure the accused who seemed preoccupied that OB's head was not normal and that there was something else wrong, even if she did not have achondroplasia" (Ex F2 para. 11). The tests of 9 September 2010 100On 9 September 2010 a head ultrasound was reported as evidencing mild prominence of the extra axial CSF spaces which were just above upper limits of normal (Ex F3). It was observed that this would need clinical review and follow up. The conversation with Ms Shalhoub - 21 September 2010 101The accused telephoned Ms Shalhoub on 21 September 2010 and informed her that she had not been able to keep her follow up appointment with Dr Rickard-Bell. On that occasion the accused said to Ms Shalhoub (Ex K para. 12): "I am not convinced that (OB's) arms are of normal length and in addition I am now extremely concerned about OB having frontal bossing...I am very worried because the measurement in question is a few millimetres above the normal range. I have seen a paediatric surgeon and he is not convinced that there is frontal bossing and added that OB's forehead's appearance is normal and familial in appearance. But I am not convinced by this, I am sure OB will require head surgery to rectify her forehead size." 102Ms Shalhoub formed the view that the accused's anxiety was escalating (Ex K para. 12). The sixth consultation with Dr James - 29 September 2010 103Dr James reviewed OB on 29 September 2010. He noted the results of the ultrasound conducted on 9 September and noted that both the accused and RB had said that they were "reassured" by (inter alia) the fact that they had consulted a Professor Gianoutsos, who had expressed no concern about OB's skull shape. Dr James said that at that time he was confident that OB was a normal, healthy baby. He recommended a review in 2 months (Ex F1 paras. 12-13). The accused's admission to hospital - 19 October 2010 104In about mid October 2010, the accused and RB discussed obtaining treatment for the accused's anxiety (commencing at T29 L 41). On 19 October 2010, having initially presented to Concord Hospital, the accused was referred to the Hills Private Hospital where she was seen by Dr Manambrakkat (Ex M1 p. 17, Ex M2). Dr Manambrakkat obtained a history from the accused which included reference to OB's skin tags, as well as the accused's fear that OB was suffering from some genetic abnormality (Ex M1 p.23). 105Dr Manambrakkat concluded that the accused's mood was depressed, and that she had significant anxiety. However, he stated that she was neither psychotic nor suicidal. He diagnosed an adjustment disorder with depressed mood and prescribed Avanza (Ex M1 p. 21-22). He explained (Ex M1 p. 22) that the accused "was facing a stress and was responding to, adjusting to that, in perhaps a maladaptive way". 106Dr Manambrakkat saw the accused the following day, 20 October 2010. The accused said that she was feeling better and was keen to leave hospital because she felt guilty about leaving OB at home (Ex M1 p. 25). The accused also expressed the feeling that her mental state would improve with the support of family and friends (Ex M1 p. 25). Dr Manambrakkat concluded that the accused's anxiety was improved and she was discharged from hospital (Ex M1 p. 26). The notification of the test results - 26 October 2010 107On 26 October 2010, Ms Shalhoub told the accused that the CGH array tests had been reported as normal. Ms Shalhoub stated that the accused seemed "surprised" when given this information (Ex K para. 13). The accused told Ms Shalhoub that she had not bothered to attend any further psychiatric appointments because she "felt OK" (Ex H1 para. 28). 108SG gave evidence of the accused being informed of the final test results (commencing at T38 L23): "... it was Friday I remember. I don't remember the date. It was about almost a week prior to accident. And she said to me she rang me, "Mum" she said, "Mum, guess what. There is really good news." Baby OB's results came like okay, good. It was good news. She was excited about it. And I said, "MB, yes, there is nothing to worry. Baby OB has been normal. She's all right." 109RB said that he and the accused were walking in a park when they learned of the final test results (T30 L23-25). He described the accused's reaction as being one of "relief" (T21 L20-22) and said that they were "quite happy" (T30 L25). RB said that from that time until the time of OB's death the accused "seemed okay"(T21 L24-26). He described her (T21 L30-31) as being "a bit more relaxed; ...still coming to terms with it all, but ...she was getting better". The seventh consultation with Dr James - 28 October 2010 110Dr James saw OB on 28 October 2010, at which time she was 6 months of age. He noted that the accused was more relaxed and that she felt OB was "normal". Dr James arranged an ophthalmological consultation due to the presence of allergic conjunctivitis and tried to reassure the accused and RB that he felt that OB was normal. He recommended a review one month later (Ex F1 para. 14). The three week period leading up to OB's death 111RB said that when he and the accused learned of the final test results, the accused had started "weaning off" her medication, to the point where she had completely stopped it by the week of 12 November 2010 (Ex A para. 12). He said that during the days leading up to OB's death things had been "going perfectly" and that the accused had "been feeling better" (Ex A para. 13). He referred, in particular, to the accused being busy with preparations for OB's Baptism which was to take place on 12 December 2010. Such observations were consistent with those of SG who said that the accused was "very organised" in respect of those preparations, that she was variously in a "good mood" and that everything was "normal" (Ex B paras.15 to 18). However, that part of SG's evidence was somewhat at odds with her oral evidence (commencing at T 39 L15) that despite being informed of the results, the accused's concerns did not dissipate and that her level of anxiety between June and October 2010 was constantly severe (T36 L46-T37 L4). 112There is evidence which tends to establish that the accused continued to have concerns about OB, notwithstanding that all test results had been reported as normal. Ms Di Nunzio gave evidence of a telephone conversation she had with the accused in late October/early November 2010 (T77 L30-50) in which the accused continued to refer to the fact that there was "something wrong" with OB. Ms Di Nunzio said: "And I said to her, "Look" I was kind of getting not upset but I was getting not kind of fed up to calm her down and tell her that look, it's not it can't be anything serious like cancer or a terminal illness. And she turned around and said, "Well, look, you know, sometimes it's better to deal with a terminal illness than to live with a dwarf for the rest of your life." 113Shortly after this conversation, Ms Di Nunzio hosted a Melbourne Cup function at her home, which the accused attended without OB (T76 L16-30). Ms Di Nunzio said that the accused gave the appearance of being "on another planet", and "very preoccupied with something" on that day (T76 L42-43; T81 L25-29). She described her as being coherent (T82 L6) and able to maintain, and engage in, conversation (T82 L10-14) but explained that she "just kind of gazed" without making eye contact (T82 L23-39) and appeared "like medicated or just her mind was elsewhere" (T84 L10). Ms Di Nunzio also said (T77 L8-10) that the accused remarked, in reference to another baby who was present, that the baby was "normal". 114Ms Di Nunzio also gave evidence that the accused had said she was receiving assistance from her mother because of an inability to cope. However, she explained that this was not so much an inability on the part of the accused to cope with OB because she was a new born baby, but rather an inability to cope with what the accused perceived were OB's imperfections (T83 L23-37): ". ... she felt she didn't even want to look at (OB) or pick her up. There was nothing really else about, you know, her domestic life or anything else that she wasn't coping with. Nothing about her marriage or it was just more so that it felt like she really didn't say anything positive about it was like she was disattaching herself from her from her daughter ... not so much not coping with the baby. She wasn't she was just preoccupied with the test results. It wasn't nothing to do with coping with the baby itself." 115On 16 November 2010, which was only two days prior to OB's death, Ms Dinov visited the accused at her home. She explained (T115 L26-48): "I arrived and I wanted a drink and it was just suggested that we have some champagne and she started speaking and I noticed that she was very emotional and she was talking about OB, her concerns. I am just trying to think because there was so much that happened, and she was talking about OB not fitting into her perfect family and suggesting that she throw or jump with OB over a cliff or throw her in a bin. Q. When MB was talking about jumping over a cliff or throwing OB into a bin, how did she appear? A. I can't remember. Q. At the time of this meeting from your conversations with MB do you know if there were still outstanding tests for OB or whether they had all finished? A. I think they were all finished and they came back normal, so I remember, sorry as well, getting a bit upset with MB as to why she was still concerned about her and why she wasn't moving on with her life. Q. Was there anything said by MB about observations she had made of any other children? A. Yes, she was talking about how she would see ferrals, in the park, and how can they have normal children and why, what did she do to deserve this child, why God punished her." 116Ms Dinov's recollection that these things were said by the accused after all test results had been returned accords with the evidence before me that the last test results (being the CGH array) were returned on 26 October 2010. 117When asked about her observations of MB on 16 November 2010 Ms Dinov said (T118 L26 - T119 L8): "A. Well I think she was getting worse because the two days prior to OB dying I had never seen her like that before as I had seen her that day. She was saying, like it struck me, so when I left there I was really concerned and I have never been like that concerned prior. I mean I knew she was like, she was speaking about it, and like obviously it was a major distraction, it preoccupied her mind, but not like the two days prior to the death. ... I didn't quite understand. Like the tests came back positive, yet she was still greatly concerned about something being wrong with OB, like to the point, like I remember saying things like "you have to snap out of this" because how could she possibly be a wife or a mother, a mother, if she is continuing to worry about stuff that's not worthy about being worried. I mean there was nothing wrong from the tests, so I couldn't quite understand. ... Q. Yes, on the 16 November did it seem to you that MB was becoming more and more obsessed with these problems? A. Yes, definitely. Q. And you were very alarmed? A. Well, yeah, I was concerned, yep." 118Ms Dinov gave evidence that when she saw the accused on 16 November the accused expressed concern about OB achieving her developmental milestones. Ms Dinov demonstrated a leg exercise which the accused could perform on OB. She recalled the accused dragging OB across the floor when performing that exercise and telling her to be more gentle (T 116 L11-20). 119The evidence of the accused's presentation in the three week period leading up to OB's death is, in one sense, difficult to reconcile. On the one hand, observations of RB and SG indicate an improvement. On the other hand, the evidence of Ms Dinov, which was not challenged, reflects the continuing anxiety of the accused about OB's condition and, more importantly, an expressed desire to be rid of her. 120As discussed further below, the medical evidence establishes that the accused's mental state fluctuated, and that she could function better on some occasions than on others. In my view, that is reflected in the evidence of RB, SG and Ms Dinov about the accused's presentation in the period leading up to OB's death, particularly as that evidence related to the accused organising OB's Baptism. What is clear however, is that only two days before OB's death, the accused was anxious, and had expressed a desire to be rid of OB, by jumping with her or throwing her from a cliff, or by throwing her in a bin. The events of 18 November 2010 121On the morning of 18 November 2010 RB left for work at about 8.30 am. He did not see any injuries to OB when he left (T23 L28-35). 122The accused made a call to 000 which was received at approximately 12:10pm by an operator, Jessie Fraser (Ex P p. 4). The recording of the call (Ex Q1) was played in the hearing and a transcript of the conversation was tendered (Ex Q2). The call extends for more than 10 minutes. Whilst I do not propose to set out the entirety of what was said, the following observations are relevant. 123Firstly, from the outset of the conversation, the accused sounded obviously distraught and upset. Her first words to Ms Fraser were: "My daughter, she is in the bath, she's six months old. I left her in there just to get to the shampoos and she fell out of that seat. Please..." 124Secondly, it is apparent from what was said in the course of the conversation that in making the call the accused was not speaking from within the bathroom. So much is clear from (inter alia) the fact that the accused told Ms Fraser (Ex Q2 p. 1) that she was not with OB at the time. 125Thirdly, Ms Fraser made numerous requests to the accused to retrieve OB from the bath. These requests were renewed by a colleague of Ms Fraser who I infer was her supervisor, and whose assistance was sought part way through the conversation. On each occasion the accused replied with words to the effect: "I can't go in there." 126Ricky Knox, an ambulance officer, received a call to attend the accused's premises at about 12:12pm. He arrived at about 12.16 pm (Ex R1 para. 7). Because the call that he received had made reference to submersion, Mr Knox initially looked for a swimming pool at the premises. When he ascertained that there was no swimming pool, he went into the house and walked into the bathroom where he saw OB prone in the water with her head submerged (Ex R1 para. 10). At that point Mr Knox shouted (Ex R1 para. 10): "They haven't even got the baby out of the fucking bath." 127Mr Knox said (Ex R1 para. 10) that he could not remember the temperature of the water but that its depth was twice that of OB, about 15 to 20 cms. He described the position of OB as follows (Ex R1 para. 10): "The child's hands were down into the water, bent from the elbows. The child's feet were touching the bottom of the bath, but the child's head and body were definitely floating. The child's head was facing the front of the house. The child's body was in the right hand end of the bath, this is the end closest to the front door of the house. I also noticed something in the bath behind the child but I didn't take any notice what it was. The object was almost the same size of a child. I can't remember anything about the object, I just remember something being there. I would describe the bath-tub as being tiled in and not free standing. I remember it being a light colour, maybe white or cream." 128Photographs 48 and 49 in Ex AA show the Bumbo seat floating in the bath. This is obviously the "object" to which Mr Knox was referring. 129With the assistance of another officer, Mr Knox commenced two finger compression CPR. OB showed no signs of life. An intensive care crew then arrived and treated OB. 130The unchallenged opinion of Professor Cass (Ex AX) is that it takes approximately four to six minutes for an infant to die from drowning. In the present case, a period of approximately six minutes elapsed between the time at which the 000 call was received (12.12 pm) and the time at which Mr Knox arrived (12.16 pm) and found OB in the bath with no sign of life. 131After the arrival of the intensive care crew Mr Knox had a conversation with the accused in which she said (Ex R1 para. 16): "... 'I went to get wash cloths and a tracksuit, when I came back I saw her face down in the bath tub. I could not go back in.' 132Mr Knox said that the accused had made no reference to fainting or collapsing and had said words to the effect (Ex R2 para. 4): "I went to go get a tracksuit and when I came back she was face down." 133Mr Knox was accompanied by another officer, Lania Morgan. Ms Morgan noticed that when taking the accused's pulse at the scene, the sleeve of the right arm of the shirt that she was wearing was wet (Ex. S para. 27). 134Dorothy Apps, the accused's next door neighbour, was present when ambulance officers arrived. She said (Ex V1 para. 10) that when an ambulance officer asked the accused what had happened the accused replied: "I was bathing the baby. I wanted to get a couple of things." 135RB later received a message from Mrs Apps to make contact urgently (Ex A paras. 16; 18). 136Later analysis of blood samples taken from the accused did not indicate the presence of anti-depressant medication, but did indicate the presence of the components of Xanax, a drug used to treat anxiety. The unchallenged expert evidence is that when making the 000 call the accused was not impaired by that (or any other) medication (Ex AZ1 para. 8). OB's arrival at hospital 137OB was brought in by ambulance to the Emergency Department of Concord Hospital at 12:31pm (Ex U). She was immediately triaged to the resuscitation area. A history was taken that she had been found immersed in water in a bath, in full cardiorespiratory arrest with no palpable pulse (Ex U para. 4). CPR was continued. Dr Paoloni, an emergency physician, found no vital signs. He saw no physical or traumatic injuries evident and could detect no signs of any underlying illness (Ex T para. 4). Endotracheal intubation was performed and OB was given adrenalin. There was no response to resuscitative efforts, and OB's life was pronounced extinct at 12:56pm (Ex U para. 4). The accused's admission to hospital 138At 1:15pm on 18 November 2010 the accused was assessed by Dr Snars, the medical superintendent of the Concord Centre for Mental Health, assisted by Drs Vandenberg and Eagle (T130 L10 - T131 L8). 139Dr Snars transferred the accused to "Manning East", an acute psychiatric unit specifically for women in need of a high level of mental health care (T131 L15-42). The accused was observed to be "extremely distressed and uncommunicative" at the time (T131 L44-47) which gave rise to concerns for her safety and the possibility of suicide (T132 L3-4). 140Upon her admission to Manning East, the accused was classified as an involuntary patient on the basis of depression, and concerns about her safety (T132 L6-9). On 2 December 2010 her status was changed to that of a voluntary patient, she having been co-operative with treatment in the intervening period (T132 L11-21). Between 2 December 2010 and 30 December 2010 the accused was allowed to take periods of leave. At the time of her discharge on 30 December 2011, a follow up through the Croydon Community Mental Health Team was recommended (T132 L19-31). Dr Snars explained that after her admission, the accused's condition had improved at a rate consistent with what would be expected of a person who had been hospitalised and placed on treatment (T138 L40-50). 141Nurse Carol Fitzsimons spoke with the accused at the time of her admission into Manning East. At that time the accused was accompanied by RB and was observed to be responding to questions with monosyllabic answers (T150 L49 - T151 L8). RB remained with the accused for some time. After he left to go home, the accused became distressed and was crying, indicating that "she wanted her baby back". She was administered a relaxant at that time, which produced a settling effect (T151 L10-31). 142By reference to her clinical notes, Ms Fitzsimons recounted her conversation with the accused at that time (T151 L46 - T152 L5): "(She) stated that everything felt like a dream. We were all very happy. She talked about giving OB a bath because she had given her some banana and she had made a mess on her chest. She said she placed her baby in the baby bath chair and stated 'I thought she was safe'. She went to get a face flannel and when she came back she found OB face down in the bath. She stated 'I couldn't pick her up, why didn't I pick her up?', and repeated this a few times. She also talked about the genetic tests that had been done on OB. She stated they all turned out to be normal. She stated that she had been quite stressed when these tests were ongoing but had actually reduced her medication because everything was okay." 143The accused told Ms Fitzsimons that she had previously been prescribed anti-depressant medication and Xanax. She told Ms Fitzsimons that "it (didn't) feel real" (T52 L7-14). Although in cross-examination Ms Fitzsimons said (T152 L29) that the accused had said that she "had stopped taking" her medication after the test results in respect of OB had been returned, she agreed in re-examination, by reference to her notes, that the accused had in fact said that she had "reduced her medication" without going into further detail. 144Dr Snars diagnosed the accused with major depression (T137 L47 - T138 L4). Although the history obtained suggested that the condition was pre-existing, Dr Snars had no information available concerning the accused's mental health immediately prior to her admission (T138 L8-21). He explained that any pre-existing major depression would have been exacerbated by the trauma of OB's death (T138 L32-38). 145Although he considered other possible diagnoses, Dr Snars found no evidence of any psychiatric disorder other than major depression (T139 L24-35; T140 L1-3). He acknowledged that the symptoms of major depression could be referable to a deeper underlying condition such as schizophrenia (T143 L23 - T144 L41). However, he said (T140 L6-14) that the accused was capable of providing a coherent account of events and did not manifest signs of psychosis. 146Dr Snars agreed that in respect of schizophrenic and delusional conditions of a high order, it was frequently the case that a patient would give a number of different and inconsistent accounts in respect of particular matters (T145 L33-37). However, he stated that in his treatment of the accused, she was able to give a history of what had been occurring for the duration of OB's life. Dr Snars did not detect any inability on the part of the accused to give a consistent account and he detected nothing which suggested a shift in her internal sense of reality (T149 L19-29). The post mortem examination of OB - 19 November 2010 147Dr Van Vuuren conducted a post mortem examination of OB on the morning of 19 November 2010. In her report she stated (inter alia) (Ex N p. 2-3): "External post mortem examination did not show features of dwarfism. There was evidence of medical intervention. Small abrasions were present on the face and back of the head." 148Under the heading of "Evidence of injury" (Ex N p. 5) Dr Van Vuuren noted (inter alia) the following: "1. There was a 10 x 2mm abrasion on the right frontal area of the head. 2. There was an abrasion in the right ear which measured approximately 7 x 1mm. 3. There were 2 abrasions in the left ear which measured approximately 7mm. 4. ... 5. ... 6. ... 7. Several scratches were present on the back of the head. The largest measured 10 x 2mm and they measured approximately 30 x 20mm in total. 8. ... 9. ..." 149Photographs of OB (Ex O) demonstrate the injuries referred to in (7) above. 150Dr Van Vuuren said (T121 L30 - T122 L5) that the physiology of a 6 month old baby was such that it was unlikely that the injuries in (1) and (7) had been inflicted by OB herself. She was unable to state what caused them, but said that their appearance was consistent with having been caused by a fingernail. In her opinion, they were ante mortem (T123 L13-15; T124 L25). Whilst Dr Van Vuuren agreed that it was possible for the injuries to have been caused in the course of administering CPR treatment (T124 L16) she reiterated that the appearance of the injuries was consistent with them being ante mortem. In these circumstances she did not think that the injuries had been caused as a result of treatment administered to OB by ambulance officers (T124 L25-28). 151Dr Van Vuuren agreed that she was not able to determine that OB was drowned by anyone, or that her death was the result of "foul play" (T124 L5-9). Whilst that is relevant, it must be emphasised that Dr Van Vuuren was giving evidence in relation to a single aspect of the circumstantial case relied upon by the Crown. For the reasons I have set out more fully below, I must have regard to the entirety of the circumstances, not just one. 152Dr Collins, a consultant Forensic Pathologist, was called in the accused's case to express opinions regarding (inter alia) the post-mortem examination and the cause of the injuries found by Dr Van Vuuren. Dr Collins was not present at the post mortem examination. Accordingly, he did not view the actual injuries. For the purposes of expressing his opinions, he relied on the same photographs as those in Ex O, which are colour photocopies. 153Dr Collins candidly acknowledged the limitations which are placed upon any expert who comes (as he put it) "second-hand to a case" (T292 L33-36; T294 L32-40). It was expressly accepted by counsel for the accused (T291 L26) that there was no difference between the photographs in Ex O and the photographs upon which Dr Collins based his opinion. Dr Collins described those photographs as being "of less than optimal forensic quality" (T295 L9-10). He later agreed that they were of "inferior quality" (T297 L1-3). Dr Collins also confirmed that unlike Dr Van Vuuren, he had not had access to digital photographs or microscopic slides (T295 L25-34). Despite all of these matters, Dr Collins thought that there was "no real difficulty in the interpretation of (the) injuries" (T295 L3-4). 154Dr Collins described the injuries as being "blunt force ... scratch abrasions" (T289 L43-49) which were consistent with having been caused by a fingernail (T297 L5-9). He found no evidence of any particular injury which was consistent with OB having been drowned by way of forceful immersion under the water (T289 L22-26), although he expressly acknowledged that a person may be forcefully drowned in a way which leaves no evidence of injury at all (T289 L31-35). 155Dr Collins expressed the view that OB's injuries were either ante mortem or perimortem and were "fresh", by which he meant that they could have been anything up to 1 to 2 days in age. He explained that the term "perimortem" meant "at or around the time of death" (T289 L5-12; T295 L47-T296 L16). He reiterated that the injuries had not, in his opinion, been caused "hours after death" and that they could have occurred "at or about the time of the death or hurt" (T296 L15-22). In circumstances where Dr Van Vuuren had expressed the opinion that the injuries were ante mortem, Dr Collins, thought that she was "largely saying ... to some extent ... what I am saying" (T296 L26-29). 156Both Dr Collins and Dr Van Vuuren agreed that the injuries were consistent with having been caused by a fingernail. The principal difference in their opinions (such as it is) concerns the time at which the injuries were sustained. The unequivocal evidence of Dr Van Vuuren (T123 L14-16) was that the injuries were ante mortem, or in other words occasioned prior to OB's death. Whilst she conceded the possibility in cross-examination (T124 L11-16) that the injuries were caused in the course of CPR treatment, she confirmed in re-examination that the appearance of the injuries indicated that they were not caused in that way. 157I accept the opinion of Dr Van Vuuren in this regard and am satisfied that the injuries were occasioned prior to OB's death. Whilst Dr Van Vuuren could not say how long before OB's death the injuries were caused, I do not accept the opinion of Dr Collins that it could have been anything up to one to two days prior. For the reasons I have set out, Dr Collins was at a clear disadvantage in expressing his opinions. Further, his opinion that the injuries could have been inflicted days prior is completely inconsistent with the unchallenged evidence of RB, which I accept, that he saw no injuries to OB's head when he left for work on the morning of 18 November 2010. The police investigation and interview with the accused 158Detective Bozikis and Detective Muir attended Concord Hospital on the afternoon of 18 November 2010 where they saw the accused. Detective Bozikis observed (Ex W para. 5) that the accused was unresponsive and tearful at that time. 159RB arrived at the hospital at about 2:05pm. He said (Ex A para. 19): "When I walked in (the accused) was asleep. I tried to wake her up at first but she would not open her eyes. She just started crying and stayed quiet. I could barely get anything out of her other than she told me 'it was an accident'. I said 'What happened possum?' (She) said 'I wanted to give her a bath. I left her in the chair; I went to go get a jumpsuit.' As soon as I heard this I realised that she had left OB in the bath. She got distracted and left her in the bath. (She) mentioned that she was playing with her ducks." 160Police were present when the accused said to RB (Ex W para. 12): "It was an accident - I wanted to give her a bath. I left her in the chair and went to go get a towel..." 161When police spoke with the accused and asked her what had happened she replied (Ex W para. 14): "I've never washed her before, my mobile rang, I took her out and wrapped her in a towel. Put her back in, wanted a second face towel. So I went to the cupboard but I wanted a harder one, I went to her room and at the bottom drawer grabbed one. When I came back she was already in the water." 162When asked whether, at that point, she touched OB, the accused responded: "No, I couldn't". 163The conversation continued (Ex X2): "Bozikis: Do you want to ask me anything before we go Accused: (No response) Bozikis: Can I ask you one more question about the mobile phone? MB did the mobile phone ring once or twice? Do you remember that? Accused: I don't remember. Bozikis: You don't remember. When it rang the first time, did you pick OB up? You know your mobile number (sic) phone when you told me that it rang, who actually was ringing you? Do you remember who it was? Accused: The lady from work. Bozikis: The lady from work. What's her name? Accused: Um Julie Stockton. Bozikis: Sorry Julie. Accused: Julie. Bozikis: Ok. And then the second time, did the phone ring a second time or was it just the once? Accused: (INAUDIBLE) Bozikis: You don't remember. Ok. When the phone rang with Julie where was OB? Accused: (No response). Bozikis: Ok, alright, that's ok." 164A summary of telephone records (Ex Y) shows an incoming call from Julie Stockton of 13 seconds duration at 11:34:07. The phone records also show an incoming text message from Ms Stockton at 11:34:49. 165Police conducted a search of the accused's premises. Numerous photographs of the premises form part of Exs Z and AA. A DVD of the accused's premises taken by police on 21 February 2011 is Exhibit AK and a plan of the premises is Ex. AB. Senior Constable Tancred is seen on Ex AK walking from the bathroom to various positions within the premises, firstly by doing so at what was described as a "normal pace of walking" and secondly at a slightly faster pace. In each case, two timings were recorded (the first being the time at normal pace and the second at a faster pace): (b)from the bathroom to OB's bedroom and back again: a. 12.3 seconds b. 11.2 seconds (c)from the bathroom to the main bedroom and back again: a. 17.9 seconds b. 13.8 seconds (d)from the bathroom to the second bedroom and back again: a. 16.8 seconds b. 12.9 seconds (e)from the bathroom to the kitchen and back again: a. 18.2 seconds b. 15.0 seconds (f)from the bathroom to the basket in the lounge room and back again: a. 13.1 seconds b. 9.5 seconds (g)from the bathroom to the laundry and back again: a. 26.7 seconds b. 20.4 seconds (h)from the bathroom to the clothes dryer in the garage and back again: a. 29.9 seconds b. 25.5 seconds (i)from the bathroom to the OB's room and then to the main bedroom and back again: a. 27.6 seconds b. 22.7 seconds (j)from the bathroom to OB's room to the washing basked in the lounge room and back again: a. 23.2 seconds b. 18.2 seconds (k)from the bathroom to the main bedroom to the washing basket and back again: a. 25.0 seconds b. 21.7 seconds (l)from the bathroom to OB's room to the washing basket to the laundry and back again: a. 38. 9 seconds b. 31.9 seconds 166On 17 February 2011 police received a document headed "Statement" signed by the accused and dated that same day (T188 L37 - T189 L9; Ex AJ). The statement is in the following terms: 'My full name is (MB). I am 35 years old. I married RB on 25 August 2007. RB and I had our first child, our daughter OB, on 21 April 2010. On 18 November 2010 our daughter died when she drowned in the bath. I called the ambulance. My husband and I have been greatly traumatised by OB's death. As a result of this trauma and my grief I just cannot talk to police about this awful (sic) accident. After I was approached by the police I sought legal advice. The lawyers have advised me not to make any further statement to the police or to agree to be interviewed. (signed) MB 17/2/11" The accused's arrest 167The accused was arrested and charged with OB's murder on 6 May 2011. When informed that she was under arrest for murder the accused responded (Ex W para. 45): "Murder, I didn't murder her, it was an accident." 168At that time Detective Bozikis was informed that when searching the property, Detective Tancred had located a number of documents inside the zipper pocket of the accused's black handbag (T192 L3-7; Exs AL1 and AL2). One of those documents (Ex AL1) is a statement in the handwriting of the accused headed "My statement". It is in the following terms: "-Woke & took Xanax and Luvox as I was feeling depressed as RB & I had an argument the night before. - Fed OB in her chair & then was going to have a play with her in the bath & wash her down. It was the first bath I had given her as RB said to give her a bath the night before. - My Mum From memory i missed a call from my Mum so i sent her a text telling her to come over in the afternoon as i wanted to get OB bathed & immunised. - Put OB in the bath & played with her rubber duckies & washed her down with water. - mobile Phone rang & i picked up OB out of bath & wrapped her in her towel & walked into our bedroom. I missed a call from my Manager Julie Stockton. I started writing her a text back saying I'd call back later but decided to clear the message & thought I'd just call her back later. - Walked back into the bath with OB. - Heard a beep & a car – thought it maybe my Mum – took OB out of the bath, wrapped her in towel walked into the spare room to see if it was my mum. However it was not her so i went back to the bath & put OB in there. - Heard the phone ring in the lounge room & left OB in bathroom with her duckies. - Walked to phone, picked it up & then fainted (sic) & fell to the ground. - When i woke up i jumped up & went towards the bathroom in a panic & then stopped. OB was not sitting upright in her chair & she was not making any noise. I fainted & fell to the ground - When i got up i dialled 000 & walked outside as I couldn't think straight. I did not know CPR. - I begged the ambulance officer to please help me – please help me as i did not want to see her like that. The ambulance officer asked me to go and get OB out of the chair & to pull the plug out of the bath. I said i could not do it. i did not want to see her like that. - I could hear the sirens getting louder & i came back inside, found my key, & put down the phone. - I closed my eyes & went back into the bathroom to try save my precious baby OB. - I put one arm in & the other arm in with my eyes closed & found her. - I picked her up but she was lifeless & limb (sic) & I put her back in the water and moved her chair to the side. - I found the plug & started letting the water out & then put in (sic) back in. I opened my eyes & saw OB lying face down in the water. I was in a state of shock, got my key & got to front door & unlocked it for the ambulance officer & walked to the side of the house & the neighbour came" (correction in original). 169The remaining documents found (Ex AL2) are notes which are, in effect a draft form of the statement set out above. When spoken to by police the accused admitted that the statement was in her handwriting (Ex AM1 at p. 4). The further statement of the accused 170On 2 December 2012 the accused presented at Burwood Police Station asking to see Detective Bozikis, who was on leave at the time. The accused spoke with Constable Halteh (Ex AN) and provided a further statement (Ex AO). The document, which is dated 2 October 2012 and signed by the accused, is in the following terms: "Woke and felt unwell - very sleepy. Took Xanax and anti-depressant - did not have breakfast. Fed OB Gave her a bath Put her in the bath seat Heard car/noises/voices in my head - I thought it was my Mum coming over. Took her out of bath seat and wrapped her in towel. Went into spare room to see if Mum - not her in driveway Put her back in bath seat = I felt very dizzy Phone rang = picked her up - walked into our bedroom - mobile phone had rung out - missed call = went back into bathroom and put her in seat Phone rang again = home phone - answered it = overseas call - call finished - heard voices in my head = felt dizzy = laid on the floor as it was cold = don't know how long = vision blurry. Got up and went back to the bathroom and she had fallen out of seat = no movement. Blanked out - got up and called 000 = could not go back in Looked for keys everywhere as door at front was locked = ambulance came = not sure what happened afterwards = blank" The accused's internet searches 171In the course of the search of the accused's premises, police seized two laptop computers along with a USB stick. The two laptop computers were examined and their internet histories recovered. A spreadsheet was prepared in respect of one of those computers showing a complete history of internet sites visited by its browser. A total of 65,536 events are listed on that spreadsheet comprising searches, website history and other recorded internal computer activity (Ex AP para. 7). Detective Bozikis reviewed the history in total and attempted to open all of the internet browser history links. Some of those links were a direct result of a search conducted via "Google" whilst others were the result of typing an actual website address or URL link (Ex AP para. 8). Amongst the topics searched were genetic abnormalities, ailments and treatments (Ex AP para. 9; Ex AQ). 172Allan Watt, an electronic evidence specialist with the NSW Police Force State Electronic Evidence Branch examined a forensic copy of the hard discs taken from the laptop computers seized from the accused's premises. In the course of his examination of one of those discs, Mr Watt was able to recover a large amount of internet history. At para. 15 of Ex AQ Mr Watt stated the following: "Some of the searches conducted were to locate pictures of children with dwarfism and other similar deformities. These searches and other websites visited returned a large number of photos of deformed children. These pictures have been extracted as have the relevant files metadata, to inform on when they were created on the computer. ... (17) When a file is deleted on a computer, the data that was once within the file, now forms the mass of the computer's "unallocated clusters". The unallocated clusters is an unstructured part of the computer's drive, that houses the space where new files can be saved and written to, which is the same place where data is located that has been deleted and not yet overwritten. This deleted data can sometimes be extracted and re-formulated back into the original file, this is known as data carving. If the files are fragmented or deleted in such a way that the entire file cannot be recovered, then often fragments of the original file can be located and subsequently extracted. The way to locate the text of data that may be of interest is to conduct key words searches. In this case the following key words were used: *drown *death *infanticide *suffocate *sids *sudden infant death *terminate *poison *asphyxiat (sic) *smother From these searches some text fragments were located, book marked and extracted." 173The text fragments which were located and extracted are set out in annexure D to Mr Watt's statement of 30 August 2011 which forms part of Ex AQ. The text fragments include the following: (i)"ISR-seeks-2-prevent-babies-and-children-from-drowning"; (ii)"Date: 28 June 2010 Section: Leading Articles, Source: No", Title: Drowning and sudden cardiac death"; (iii)"Opinion: when does abortion become infanticide?" (iv)"11-Month-baby-boy-suffocates-in-east-Pattaya"; (v)"Unborn+baby+with+dwarfism+killed+at+32+weeks+in+Australian+hospital"; (vi)"Fetus (sic)+diagnosed+with+dwarfism+-+latest+time+to+terminate"; (vii)"Latest+time+to+terminate+a+baby"; (viii)"Is+it+legal+to+terminate+a+dwarf+pregnancy+at+30+weeks+gestation"; (ix)"Asphyxiating"+thoracic+dysplasia" The conversations recorded by listening device 174In the course of the investigation police installed listening devices in the homes of the accused and her mother. A number of the conversations recorded by use of those devices have been tendered in evidence (Exs AC1 to AH 1) along with accompanying transcripts (Exs AC2 to AH2). Whilst I do not propose to set out the entirety of that evidence, the following aspects of it are significant. 175In part of the conversation in Ex AG1, the accused is recorded as saying the following (commencing at p. 5 of Ex AG2): "If he never mentioned frontal bossing she would have been alive today. I'll tell you that now. That for me was the final straw because I stopped having dreams about dwarfs and now I was dreaming her head was growing and growing and I was obsessing about her head, it was freaking me out. And her nose that little bridge and I thought my God there's so many, I just knew something wasn't right and I thought that's it" (my emphasis). 176Later, at p. 9 of Ex AG2 the accused is recorded as saying: "Like I didn't have a chance to bond with my child and that's the reality". 177In part of the conversation in Ex AH 1 the accused is recorded as saying the following (commencing at p. 10 of Ex AH2): "But it's just a tragedy. Fuck, I wish I never even had that baby, I wish I never even fell pregnant"(my emphasis). THE EXPERT PSYCHIATRIC EVIDENCE Professor Greenberg 178Professor Greenberg was called in the Crown case. He saw the accused on three occasions, namely 4 April 2013, 5 April 2013 and 1 February 2014. He provided three reports dated 18 May 2013 (Ex AT1), 10 July 2013 (Ex AT2), and 1 February 2014 (Ex AT3). 179In Ex AT1 Professor Greenberg set out a lengthy history obtained from the accused. This included references to hearing loud noises in her head (Ex AT1 p. 5). No such history had been given to any other medical practitioner at any previous time. The history also included a reference to the fact that "her thinking had stopped". 180Following his examination of the accused on 4 April 2013, Dr Greenberg (Ex AT1 p. 22) diagnosed the accused as suffering from the late onset of a schizophrenic disorder, which had been precipitated by the stresses of her pregnancy, the birth of OB and the postpartum period. He said (Ex AT1 p. 23): "I am of the opinion that MB suffers from a major psychiatric illness (mental illness), namely a Schizophrenic Disorder. MB's presentation is somewhat atypical in that she presented with acute characteristic psychotic symptoms of her schizophrenic illness after the death of her baby OB. MB was aged 37 years old (late onset schizophrenic disorder) at that time. After the birth of her child and prior to the alleged offence, the diagnosis was not overtly apparent during her presentation in 2010. Subsequently after the alleged offence, and repeatedly being admitted to the Concord Hospital, her clinical condition has now become overtly apparent to her treating specialist psychiatrist. Only over time has MB's schizophrenic disorder (a type of psychotic disorder) has (sic) deteriorated to a point in time when her presentation was a frank psychotic episode." 181At page 24 of Ex AT1 Professor Greenberg concluded: "I am of the opinion that MB presented with an initial prodromal state prior to the alleged offence and subsequently since the alleged offence, has continued to present with prodromal or residual continuous signs and symptoms of her schizophrenic symptoms (Reference: Compton 2007 and Bechdolf 2012). These include thought perseveration or obsessive thinking about her daughter's perceived genetic abnormalities. She also reported thought blockage where she felt that her thoughts were absent from her head. She described this symptoms (sic) as her "thinking had stopped", and her "thoughts would go blank". 182Professor Greenberg said that the accused's differing accounts of the events of 18 November 2010 could be explained on a number of bases (Ex AT1 p. 26). Although he accepted that those bases included the possibility that the accused had been untruthful, Professor Greenberg thought it more likely that she suffered from a major psychiatric illness, characterised by "thought blocking" which caused her thoughts to stop or go blank. Irrespective of the explanation, Professor Greenberg was of the view that the fact that the accused had given varying accounts was consistent with someone suffering from prodromal symptoms of schizophrenia, characterised by (inter alia) thought blocking, dysphoric mood, heightened anxiety and poor concentration. He thought that such prodromal symptoms also explained the accused's reluctance to follow the directions of the 000 operator to remove OB from the bath. 183In Ex AT2, Professor Greenberg confirmed his opinion that at the time of the alleged offence MB was suffering from prodromal symptoms of a schizophrenic illness. However, he did not consider that she had a defence of mental illness available to her (Ex AT2 p. 5; T 213 L 18-29; T 227 L22-27). Professor Greenberg went on to say (Ex AT2 p. 8): "I am of the view that MB had a predisposition to develop a schizophrenic (psychotic disorder). This disorder was precipitated by the adjustment stresses associated around the time of the birth of her child; the post-partum period. I am of the opinion that she did not have a pre-existing condition because she had not, at that time, presented with symptoms of an acute episode of her Schizophrenic Disorder. Any possible symptoms could only have been prodromal in nature." 184In Ex AT3, Professor Greenberg confirmed his earlier diagnosis and made a number of observations regarding the accused's fitness to stand trial. 185When giving evidence, Professor Greenberg acknowledged (T205 L48 - T206 L6) that he did not meet with the accused until more than 2 years after OB's death and that in these circumstances, he relied upon both written material with which he had been provided, and the accused's account of events. He explained that his opinions were based on "a longitudinal as well as a cross-sectional vertical assessment" of the accused. He agreed that the death of OB was a significant trauma that precipitated a decline in the accused's mental health (T207 L23-26). 186Professor Greenberg agreed (T207 L28-33) that to some extent he was limited by only having had the opportunity to meet the accused in 2013. However, he added (T207 L31-33) that in view of his particular skills in forensic psychiatry, he was able to look at the accused's entire longitudinal presentation to assist him in arriving at a concluded opinion. Professor Greenberg acknowledged (T207 L35-43) that there was some difficulty in this approach because it could not be determined that the illness manifested itself on a specific date. However, he expressed the firm view that the accused was suffering significant anxiety prior to OB's death (T208 L18-23). 187Professor Greenberg was referred to that part of the accused's history that between June and October 2010 she was not caring for herself properly and was (inter alia) not washing her hair, and was crying each day. He was made aware of evidence given in this hearing (to which I have referred) that the accused was maintaining her appearance. He did not agree that this was suggestive of the accused having been less than frank with him (T209 L7-27), describing her as someone who had a disturbed mental state. 188Professor Greenberg was then taken to evidence relating to the accused's preparations for OB's Baptism which was to take place in December 2010. When asked whether this suggested that the accused was exaggerating her level of incapacity when providing her history, Professor Greenberg could not express a definitive view. He did acknowledge however (T212 L1-17) that people who suffer from schizophrenia maintain the capacity to function and perform activities. This was particularly so in the case of the accused, whose illness had not deteriorated to the point of a frank psychosis. He explained (T212 L21-31) that on some days, the accused could function better than on others and that this may explain what might otherwise appear to be an inconsistency in the evidence of her presentation. He acknowledged that there were periods when the accused was functioning and that at those times she was more capable of making a rational determination and performing a wilful act (T224 L17-31). 189The essence of Professor Greenberg's opinion was that at the time of OB's death, the accused's schizophrenic condition was in its developmental stages (T216 L21-23). When asked whether or not he was able to say to what extent the condition had developed, he said that from a retrospective analysis it was "fairly well developed" (T216 L26-32). He specifically rejected the possibility that prodromal symptoms of schizophrenia had only manifested themselves after OB's death (T221 L38 - T222 L29). 190Finally, Professor Greenberg was asked, in the context of the possibility of the accused having left OB unattended in the bath, about the accused being "absent minded". He explained that it was not a question of absent mindedness, but rather one of thought blocking, a symptom of schizophrenia where thoughts don't exist (T228 L7-17). Professor Greenberg said (T228 L29-31) that if the accused was thought blocking at the time of OB's death, she may not have had the necessary intention to kill, or inflict grievous bodily harm upon, OB. Importantly however, he agreed (T229 L9-15) that an acceptance of the proposition that the accused had inadvertently left OB in the bath as a consequence of thought blocking necessarily assumed that thought blocking did, in fact, occur. There is no evidence that this is the case. Perhaps even more importantly, he agreed that acceptance of the proposition that thought blocking resulted in the accused leaving OB unattended would also ignore any stated intention(s) on the part of the accused to harm OB. There is, as I have outlined, considerable evidence of such stated intention. Professor Buist 191Professor Buist was called in the accused's case and provided a report dated 18 August 2011 (Ex 1). That report followed a three hour interview of the accused on 1 August 2011. Professor Buist diagnosed two conditions, namely: (i)major depression; and (ii)postpartum psychosis. 192As to the diagnosis of postpartum psychosis, Professor Buist said (Ex 1 p. 8) that the accused now spoke of a voice that was driving her obsession to find out about OB's condition. She thought it likely that the accused became unwell soon after OB's birth. 193In evidence (at T246 L35-46) Professor Buist confirmed her opinion that as at the date of OB's death, the accused had a serious disturbance of her mind and that she had gone on to develop schizophrenia. She agreed (T247 L6-13) that the prodromal symptoms of schizophrenia identified by Professor Greenberg were all consistent with the existence of a psychotic condition. 194Professor Buist accepted, in effect, that the accused's mental state fluctuated but thought that she was nevertheless significantly impaired (commencing at T247 L15). In expressing these views Professor Buist cited, in particular, the clinical history taken at the time of the accused's admission to hospital on 19 October 2010, as well as the fact that the accused was searching information on the internet (T247 L23-30). 195Professor Buist also thought that the terms of the 000 call indicated that the accused had a disturbance of mind (T248 L9-16): "I think it's consistent with a disturbance of mind. There is clear lack of ability to get from point A to point B. I know Professor Greenberg talks a lot about thought blocking, which is one of the aspects of thought disorder which is one of the key parts of schizophrenia, but thought blocking is only one of the parts of thought disorder and not being able to get from point A to point B is a very clear big part of that and that's really affected her behaviour, her thought process, sorry her thought processes affecting behaviour, and they are very clearly closely aligned." 196Professor Buist expressed the view that the accused's mental illness had a bearing on her omission to act when asked by the 000 operator to retrieve OB from the bath. She said (T248 L39-46) that it was "highly likely" that the accused's inability in this regard reflected an inability to think in a logical and coherent way, all of which was a manifestation of her illness. She thought that the accused's inconsistent accounts of the events of 18 November represented a manifestation of her disturbed mind (T249 L26-46). Although she had diagnosed a psychosis and Professor Greenberg had not, Professor Buist thought that there was little difference between their respective opinions (T251 L44-47): "... to me there is clear evidence prior to OB's death that showed her disturbance of mind, so whether you want to call it prodrome schizophrenia or post-partum psychosis that hadn't declared itself or schizophrenia that hadn't declared itself fully, it makes no difference." 197Professor Buist accepted (T256 L10-16) that the inconsistent presentation of prodromal symptoms meant that such symptoms would have had more of a role to play on some occasions than on others. This was generally consistent with the opinion of Professor Greenberg. However she expressed the opinion (T257 L9-10) that it was unlikely that the accused's thinking was not affected in some way at the relevant time. She accepted that a stated intention to kill could have existed independently of any psychiatric or personality disorder from which the accused was suffering, although she regarded this as highly unlikely in the case of the accused (T266 L1-11). 198Finally, Professor Buist pointed out (commencing at T271 L49) that on the available evidence, depression was a major part of the accused's presentation at that time and that this was completely consistent with an underlying schizophrenic condition. She agreed (at T272 L27-30) that an initial indicator of schizophrenia can be major depression which may form part of the prodromal symptoms giving rise to a subsequent diagnosis of schizophrenia (T272 L21 - T273 L1), and reiterated (commencing at T273 L42) that at the very least, prodromal symptoms existed as at 18 November 2010. In these circumstances she did not accept the position that there was no relevant mental condition existing prior to 18 November 2010 (T274 L17-19). Conclusions as to the expert psychiatric evidence 199As Professor Buist pointed out, there is little in the way of material difference between her opinion and that of Professor Greenberg. The principal difference concerns whether the accused had in fact developed a psychosis by 2010. Professor Buist expressed the view that she had. Professor Greenberg thought that the accused was displaying prodromal symptoms of schizophrenia, or in other words symptoms that were indicating an emerging schizophrenic condition. 200Both experts acknowledged that a number of psychiatrists had assessed the accused in the period leading up to OB's death, none of whom had diagnosed schizophrenia. In particular, Dr Snars considered it but could find no evidence of it. 201On the whole of the evidence, and bearing in mind that no diagnosis of schizophrenia was made at the time of OB's death, I prefer the opinion of Professor Greenberg that at that time the accused was exhibiting prodromal symptoms of schizophrenia. I am satisfied, based on the evidence of Professor Greenberg, that those symptoms were well developed but I am not satisfied that they had developed into a psychosis as at 18 November 2010. 202Both Professor Greenberg and Professor Buist agreed, and I am satisfied, that the accused's mind was disturbed as a consequence of her mental illness. However, the precise extent of the disturbance on 18 November 2010 cannot be determined. The accused's symptoms fluctuated from time to time. They were not constantly disabling. There were times when she had the capacity to function. There is no evidence that any symptoms, particularly thought blocking, manifested themselves prior to the making of the 000 call on 18 November 2010. 203Further, neither expert suggested that the various statements made by the accused to friends in the period leading up to OB's death should be interpreted other than according to the terms in which they were made. Professor Cross 204In the course of the investigation, police obtained a report from Professor Rod Cross, Associate Professor of Physics at the University of Sydney. The report of Professor Cross formed part of the material which was served by the Crown, but upon which the Crown did not ultimately rely. However, counsel for the accused sought to rely on it, a course to which the Crown objected. 205I heard argument in relation to this issue on 28 November 2014. Having done so, I reached the conclusion that the evidence of Professor Cross was not relevant and should not be admitted. I indicated at that time that I would provide reasons for coming to that view when delivering my final judgment. 206Professor Cross conducted a number of tests to determine whether it was possible for OB to have fallen out of the "Bumbo" seat whilst in the bath. As part of his analysis, Professor Cross conducted experiments which involved 8 babies being individually placed in a bath in a Bumbo seat, and then being watched for the purposes of determining (inter alia) whether or not they fell out. Those experiments were recorded on DVD. Professor Cross' report provides, in effect, a narrative of what was observed. 207In relation to the first four babies who were used for the purposes of the experiment, Professor Cross expressed the following opinion (at p. 19): "I concluded from the experiment with the four babies that a relatively passive baby would be very unlikely to fall out of the seat and that even active babies would more likely than not remain anchored in a Bumbo seat, provided that they weigh less than about 10kg (and more than about 7kg so that the seat sinks to the bottom of the bath). Older and heavier active babies would probably be able to get out of the seat if left alone, but if they were able to crawl out and support their head above water then it is unlikely that they would drown in only 10cm of water, at least if left alone for a minute or two. I did not test the ability of a baby to hold its head above water, but two of the babies did so for about 10 seconds before being rescued by their mothers". 208In respect of the second group of four babies used in the experiment, Professor Cross said (at para. 21): "None of the four babies fell or climbed out of the seats. Babies 5 and 8 had previously been fed in a Bumbo seat and were therefore used to sitting in the seat. Baby 5 was relatively passive but did lean forward several times to touch the bath plug, without tipping out of the seat. Babies 6 and 7 were more active in leaning forward, reaching for the bath plug, the toys in the bath and the sides of the bath, but did not tip out of the seat. Baby 8 was the most active baby and appeared to attempt to get out of the seat after about 5 minutes by leaning backwards and pushing on the bath with his feet. However, his feet slipped on the bottom of the bath and he was unable to get out. Had he tried that out of water on a firm floor, then he may have been able to get out." 209Leaving aside the fact that Professor Cross' conclusions arguably amount to little more than a recording of his observations, the evidence was not relevant for two primary reasons. 210Firstly in seven of the eight cases, the baby used for the experiment was between one and three months older than OB and thus at a markedly different stage of his or her development. Secondly, all of the eight babies were between 0.5kg and almost 5kg heavier than OB. This would obviously have led to a significant difference in the dexterity of each of them when compared to OB. 211Whether OB would have reacted in the same way as any of the babies used in the experiments is purely speculative. I am not able to accept the proposition that the behaviour of eight other babies, all of whom were of different ages and weight to OB, is in any way relevant to a determination of what may have transpired when OB was in the bath on 18 November 2010. THE NO CASE SUBMISSION 212At the close of the Crown's evidence, counsel for the accused made application for a "directed verdict" in respect of the count of murder. 213Counsel for the accused submitted that the evidence concerning the instability of the Bumbo seat, and the evidence of Professor Greenberg of the accused's symptoms of thought blocking, gave rise to a possibility that the accused had inadvertently left OB in the bath tub and later had become distracted, as a consequence of which OB had died by accident. Counsel for the accused submitted that the Crown had failed to exclude this hypothesis and that in those circumstances, I should conclude that the accused was not guilty of murder. Counsel for the accused further submitted that the only available inference on the evidence was that the accused was substantially impaired such as to warrant her liability for murder being reduced to manslaughter. 214In response, it was submitted that the Crown was not required, at this stage of the proceedings, to exclude every reasonable hypothesis which might possibly be consistent with the accused's innocence. It was submitted that at this point, the Crown case should be taken at its highest and that there was evidence which sustained the inference that the accused had intentionally murdered OB. The evidence relied upon by the Crown in this regard included the statements made by the accused to friends in which she effectively stated that she wanted to "rid" herself of OB, her expressed resentment towards OB for constituting an interference with her "perfect" lifestyle and the evidence of the internet search in respect of drowning. The Crown also relied upon the injuries identified by Dr Van Vuuren as having been occasioned to OB. 215At the conclusion of submissions, I indicated to counsel for the accused that the application was rejected and that I would express my reasons for coming to that conclusion in the course of my final judgment. 216The application made by counsel for the accused was based upon the proposition that it is incumbent upon the Crown, at this stage of the proceedings, to exclude any reasonable hypothesis consistent with the accused's innocence and that if the Crown had failed to do so, the accused was entitled to a directed verdict. That proposition is contrary to authority and simply cannot be accepted. 217A trial judge may direct a verdict at the close of the Crown case only if the view is reached that there is a defect in the evidence adduced by the Crown such that, when it is taken at its highest, the evidence will not support a verdict of guilty. In Doney v R [1990] HCA 51; (1990) 171 CLR 207 the High Court stated the principle in this way (at 214): "It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty." 218It will be evident that the Crown case against the accused is circumstantial. The fact that at this stage of the proceedings there may be competing inferences available does not mean that I should direct a verdict of not guilty. It is not open to a trial judge to direct a verdict of not guilty on the basis that inferences other than those advanced by the Crown might be open: R v JMR (1991) 57 A Crim R 39. 219In Saffron v Director of Public Prosecutions; Allen v Director of Public Prosecutions (1989) 16 NSWLR 397 Gleeson CJ explained the matter in this way (at [401]): "It is a corollary of the fundamental principle that the prosecution carries the onus of proof of guilt beyond reasonable doubt that a jury cannot convict on the basis of circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances: Plomp v The Queen (1963) 110 CLR 234 and Chamberlain v The Queen [No 2] (1984) 153 CLR 521. It does notfollow, however, that simply because it is possible, looking at the objective circumstances established by the evidence in a case, to construct an hypothesis consistent with the innocence of the accused, the case is not one fit to go to a jury. That entirely overlooks the role of the jury in a criminal trial." 220Gleeson CJ observed that the various matters to which he had referred had been emphasised in Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 where the Court (Young CJ, Anderson and Gobbo JJA) said (at 415-416): "The question whether the Crown has ultimately excluded everyreasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and asMenzies J explained in Plomp's Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt" (emphasis in original). 221Similar observations were made in R v Bilick and Starke (1984) 36 SASR 321; (1984) 11 A Crim R 452. 222It follows that if the evidence adduced by the Crown is capable of proving each of the elements of the offence beyond reasonable doubt, then the matter should be left to the tribunal of fact for determination. 223There is obviously no issue that OB died. Further in my view, the material to which the Crown pointed is capable, when taken together, of sustaining an inference that the accused intentionally murdered OB by drowning her in the bath. The existence of a competing hypothesis simply highlights the fact that ultimately, the question is one for the tribunal of fact. I constitute the tribunal of fact for present purposes. 224Finally, I have noted that counsel for the accused, in the course of his submissions, made reference to evidence supporting a partial defence of substantial impairment. Although it was not clear, the submissions tended to incorporate some suggestion that I should, in effect, conclude that the accused committed the offence of manslaughter, that being an available alternative to the allegation of murder, and direct a verdict accordingly. 225If this was the proposition that counsel for the accused intended to convey, I am unable to accept it. The partial defence of substantial impairment is a matter in respect of which the accused bears the onus of proof. Cases in which a verdict may be directed in favour of the accused, where the accused carries the relevant onus, are exceptional: Vickers v R (1975) 61 Cr App R 48 at 51; Morgan v Attorney-General of the State of Queensland (1986) 24 A Crim R 343 at 350. THE CROWN CASE OF MURDER 226The principal basis on which the Crown puts its case is that the accused intentionally killed OB by immersing her in the bath and drowning her, intending to kill her or intending to inflict grievous bodily harm upon her. 227The Crown acknowledged that it bears the onus of excluding any other reasonable hypothesis. In this regard, it is the accused's position (inter alia) that the Crown has failed to exclude the possibility that OB's death was the result of a tragic accident, and not the result of any act on the part of the accused. SUBMISSIONS OF THE PARTIES Submissions of the Crown 228The Crown emphasised that because the case against the accused was a circumstantial one it was necessary to view the evidence as a whole in determining whether a case of intentional murder was established. In broad terms, the circumstances relied upon by the Crown included the following: (i)the accused's lack of affection towards OB; (ii)the accused's belief that OB was a dwarf, in circumstances where the accused had a phobia about dwarfs; (iii)the accused's internet inquiries relating to (inter alia) drowning by cardiac arrest; (iv)the accused's belief that OB compromised, or impacted upon, her "perfect life"; (v)the statements made by the accused about throwing OB from a cliff or throwing her in the bin; (vi)the accused's inconsistent accounts of the events of 18 November 2010 which were relied upon by the Crown as lies constituting evidence of consciousness of guilt; (vii)the content of the listening device material; and (viii)the injuries observed on OB. 229In developing these submissions the Crown cited the accounts given by the accused about the events on 18 November 2010, namely: (i)in the 000 call; (ii)to Mr Knox the ambulance officer; (iii)to Detective Bozikis; and (iv)to Nurse Fitzsimons. 230It was submitted that I should come to the conclusion that each of these accounts amounted to a deliberate lie which constituted evidence of consciousness of guilt on the part of the accused. 231The Crown submitted that the evidence of Ms Di Nunzio, Ms Dattilo and Ms Dinov established that the accused was obsessed with appearance and perfection, both personally and in a more general sense. It was submitted that the various statements made by the accused to her friends made it clear that she thought OB was less than perfect, and that she had compromised her otherwise perfect life. The Crown relied on the same evidence to support the conclusion that the accused had not bonded with OB, had shown her no affection, and had made little or any positive comment about her. 232The Crown acknowledged that the accused was mentally unwell in 2010. The Crown further acknowledged that both Professor Greenberg and Professor Buist had referred to the accused's mind as being "disturbed". However, it was submitted that on the whole of the evidence the disturbance was one which, in effect, "waxed and waned". It was submitted that the evidence supported the conclusion that the accused was functioning on 18 November, and that in the period leading up to that time she had continued to act in a way, and make statements about OB, which inferred an intention to kill OB. 233The Crown submitted that the evidence established that the injuries shown in Ex O were likely to have been sustained prior to OB's death, and that they were consistent with the application of blunt force by a fingernail. The Crown also emphasised the fact that there was more than one injury, eliminating the possibility that they had been caused by unintentional and passing contact with a fingernail. The Crown further submitted that there was no reasonable possibility that the injuries had been caused to OB by the ambulance officers, or by any other medical practitioner who had administered emergency treatment. 234The Crown also relied on the evidence of RB that he saw no injury to OB when he left for work on the morning of 18 November 2010, and pointed to the evidence that OB was in the presence of the accused between that time and when she was found by Mr Knox. It was submitted that a combination of all these circumstances left no room for any conclusion other than the fact that the injuries found on OB and depicted on Ex. O had been inflicted by the accused at some stage during the course of the morning of 18 November 2010. The Crown also submitted that the absence of any other injury was insignificant, in view of the opinions of both Dr Van Vuuren and Dr Collins that there would not necessarily be evidence of any other injury in a case of intentional drowning. 235The Crown also relied upon the internet searches conducted by the accused and, in particular, to the text fragments which inferred that the accused had accessed articles entitled (inter alia) "ISR seeks 2 prevent babies and children from drowning" and "Drowning and sudden cardiac death". The Crown submitted that these articles were of particular significance in light of the cause of OB's death. Submissions of the accused 236Counsel for the accused conceded that the expert evidence did not support a defence of mental illness. However, he submitted that the whole of the evidence tended against the proposition that the accused had murdered OB and that the Crown had failed to exclude, as a reasonable possibility, that OB's death was the result of accidental drowning, occurring in circumstances where: (i)the accused had been bathing OB in a big bath for the first time; (ii)OB had been placed in the Bumbo seat which presented as being more stable than it actually was; (iii)because of her mental illness, the accused was susceptible to profound distraction and thought blocking, and was not "appraised of time accurately"; (iv)as a result of distraction, be it because of an incoming telephone call, the necessity to obtain a bath towel, or some other cause, the accused left OB in the bath and took time to return to the bathroom, by which time OB had drowned. 237Counsel commenced by making reference to the 000 call which, it was submitted, was not inconsistent with an intention to kill on the part of the accused. The essence of the submission advanced by counsel was that the distraught demeanour of the accused was inconsistent with what would be expected from somebody who had just intentionally killed her child. 238Counsel also relied upon the evidence of OB's forthcoming Baptism, and the preparations being undertaken by the accused in relation to it. This, it was submitted, was a circumstance which was plainly inconsistent with the proposition that the accused had intentionally killed OB. Counsel also relied, in this regard, upon the evidence of the accused's concerns about OB's health, and the possibility of genetic deformity. It was submitted that the expression of such concerns, and the repeated requests for testing, were consistent with a desire to ensure that OB was properly treated, rather than a desire to kill her. 239Counsel for the accused also relied upon the evidence of the accused's anxiety, her exhibited lack of concentration, and the thought blocking which was part of her symptomatology. It was submitted that all of these factors were inconsistent with the Crown case, but completely consistent with a conclusion that OB had drowned in a tragic accident. 240Counsel also relied on the evidence of Dr Van Vuuren that she could find no evidence of "foul play". It was submitted that this tended completely against a conclusion that any deliberate mechanism had been employed to kill OB. 241It was submitted that the evidence of the accused's internet searches did not give rise to any sinister inference, but were consistent with wanting to do everything possible for OB in the event that a genetic abnormality was confirmed. As to the evidence of text fragments relating to death by drowning, counsel for the accused accepted that there was an available inference that the accused had accessed an article entitled "Drowning and sudden cardiac death" in the period leading up to OB's death. However, he submitted that I should "exercise caution" in using that inference to support a conclusion that the accused intended to kill OB. He pointed, in particular, to the fact that the text fragments had been retrieved by the use of certain "search words" by the police, in circumstances where there was no evidence that the accused had ever entered all or any of those words into any search engine. 242Counsel also relied on that part of Professor Greenberg's report (Ex AT1 p. 27) in which he indicated that in his opinion all of the factors pointed to a conclusion that the accused had inadvertently left OB unattended. Counsel accepted that it was not for Professor Greenberg, nor indeed for any other expert, to determine the facts but nevertheless submitted this was further evidence supporting the accused's poor concentration, and a further indication that the Crown had failed to eliminate accidental drowning as a possible cause of OB's death. 243Counsel for the accused also relied upon the evidence of RB concerning the instability of the Bumbo seat. He submitted that the evidence established that the accused had little or no previous experience with the seat and that the evidence of RB as to its instability was consistent with the accused, as a result of poor concentration or thought blocking, leaving OB in the bath, only to have OB fall forward out of the seat due to its instability, and drown in the accused's absence. 244Counsel acknowledged that the accused had provided a number of inconsistent accounts of the events of 18 November. However, he submitted that these accounts should not be regarded as deliberate lies, in view of the evidence that inconsistent accounts were part of the manifestation of the accused's disturbed mind. 245Counsel for the accused also submitted that there was evidence which established that the accused was a caring and concerned mother. It was submitted that such evidence tended against the proposition that the accused was the kind of person who would murder her daughter. In this respect, counsel for the accused invited me, in effect, to treat that evidence as akin to evidence of good character. 246In terms of the evidence of the statements made by the accused to Ms Dattilo, Ms Di Nunzio and Ms Dinov, counsel for the accused submitted that they should be viewed as statements of "profound frustration on the part of the accused, evidencing an inability to cope with maternal responsibilities" rather than an intention to kill OB. 247Counsel acknowledged the evidence of Dr Van Vuuren as to OB's injuries. However, he relied upon Dr Collins' evidence that the injuries were up to 1 to 2 days old and, in light of this evidence, pointed to the evidence of Ms Dinov that she had observed the accused drag OB across a floor on 16 November, 2 days before her death. Counsel submitted that this evidence provided an alternative hypothesis as to the cause of OB's injuries. I should say that I am not able to accept that submission in light of my rejection, for the reasons already given, of that part of Dr Collins' evidence. Consideration 248Before considering the submissions of the parties it is appropriate that I deal with the discreet issue of whether the accused's conflicting accounts of the events of 18 November constitute evidence of deliberate lies. 249In Edwards v R [1993] HCA 63; (1993) 178 CLR 193, and subsequently in Zoneff v R [2000] HCA 28; (2000) 200 CLR 234, the High Court considered the question of how lies may be used against an accused. The principles established in those two cases may be summarised as follows: (i)a lie may constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence, and thus relates to a material issue; (ii)the lie, and the circumstances relied upon to establish that it constitutes an admission against interest, must be precisely defined; (iii)the jury must be satisfied that the lie was deliberate; (iv)the lie may be taken into account only if the jury is satisfied, having regard to the circumstances and events, that it reveals a knowledge of the offence, or some aspect of it, and that it was told because the accused knew that the truth of the matter about which he or she lied would implicate him in the commission of the offence; and (v)it is necessary for the jury to be reminded that there may be reasons for the telling of a lie apart from the realisation of guilt. 250In R v Lodhi [2006] NSWSC 672 Whealy J (as his Honour then was), having summarised those principles, observed that the weight of authority and academic opinion favoured a cautious approach to the use of lies as evidence of consciousness of guilt: R v Sutton (1986) 5 NSWLR 697 at 701 per Street CJ; R v Heyde (1990) 20 NSWLR 234 at 236 per Gleeson CJ; R v Ray (2003) 57 NSWLR 616 at 632 per Wood CJ at CL; Zoneff (supra) at 244. Whilst this may be so, it is necessary to bear in mind that even though caution is necessary, it cannot be allowed to inhibit the Crown from having the benefit of such evidence when that course is clearly appropriate: R v Lane [2011] NSWCCA 157; (2011) 221 A Crim R 309 at [11] per McClellan CJ at CL. 251Underlying the principles to which I have referred is the fundamental proposition that any statement made by the accused which is said to be a lie must be factually false, or wrong. That a statement is factually false or wrong does not necessarily connote that it is a lie - that is why it must be established that the asserted lie is deliberate: Lane (supra) at [58] per Simpson J. 252I am not able to accept the Crown's submission that I should treat the accused's accounts of the events of 18 November 2010 as deliberate lies which evidence a consciousness of guilt. I have come to that view for two primary reasons. 253Firstly, there is an element of circularity in the Crown's argument. This is because the conclusion that the accused's accounts were deliberate lies is largely dependent upon assessing the entirety of the Crown's circumstantial case. 254Secondly, and more importantly, I must remind myself that there may be reasons for telling a lie, other than a consciousness of guilt. In the present case, there is evidence that the inconsistent accounts given by the accused were a manifestation of her disturbed mind. Significantly, those accounts were obviously given after OB had died, at therefore at a time when the accused's condition had been exacerbated by reason of OB's death. 255For these reasons I have not treated the accused's conflicting accounts as amounting to evidence of deliberate lies which reflect a consciousness of guilt. I turn then to consider the submissions of the parties. 256The Crown case that the accused intentionally murdered OB is a circumstantial one. In Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22, the Court of Criminal Appeal (McClellan CJ at CL, Fullerton J and Garling J) said (at [466]): "The case against the applicant is a circumstantial one. As McClellan CJ at CL discussed in Wood v R [2012] NSWCCA 21 at [50]-[53], where a case is circumstantial 'the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused' quoting Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ), citing Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634; see also Plomp v The Queen [1963[ HCA 44; (1963) 110 CLR 234 at 252". 257In the same paragraph the Court emphasised the need to consider the evidence as whole: "... a circumstantial case must be considered holistically. The court must weigh and consider the totality of the admissible evidence before reaching a conclusion, on the whole of the evidence, that it was open to the jury to be persuaded beyond reasonable doubt of guilt or, in the alternative, that a doubt persists such that it would be dangerous to allow the verdict of guilty to stand: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48]-[49] (Gummow, Hayne and Crennan JJ)". 258Whilst these comments were made in the context of an appellate court considering whether the evidence was sufficient to sustain a verdict of guilty at trial, they obviously reflect the approach which I am required to take in determining whether the circumstances relied upon by the Crown, when taken together, establish that the accused committed the offence of murder. That approach does not involve a process of reasoning in which an attempt is made to explain away every individual circumstance as being consistent with innocence: Gilham (supra) at [466] citing R v Micaleff [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42]; Burrell v R [2009] NSWCCA 193 at [55]. 259In my view the evidence in the present case establishes the following relevant circumstances. 260On and from the first consultation with Dr James on 24 June 2010 the accused became distressed, highly anxious, and significantly pre-occupied with OB's appearance and, in particular, about the possibility that she suffered from some form of genetic abnormality. So much is clear from the unchallenged evidence of her conversations with medical practitioners, their staff, members of her family and her close friends. 261The level of the accused's pre-occupation is particularly evident from the number of internet searches she conducted in relation to topics pertaining to genetic deformity. Moreover, she went so far as to tell her mother in February 2011 that had it not been for evidence of frontal bossing, OB would still be alive. It follows that the accused herself linked what she believed to have been OB's frontal bossing to the reason for her death. Obviously, it was not frontal bossing that was the cause of OB's death. However, frontal bossing was one of the issues which was of great concern to the accused in the context of what I am satisfied was an obsession with perfection. 262Although medical practitioners constantly reassured the accused that OB had no abnormality, those reassurances were, generally speaking, not accepted by the accused despite her occasional indications to the contrary. Even after the final test results were communicated to her on 26 October 2010, the accused remained concerned that OB was suffering from some kind of syndrome. She continued to express views to that effect well into November 2010. 263The accused's anxiety, and her pre-occupation with the suggestion that OB had a genetic deformity of some kind, arose in circumstances where she: (a)told Dr Betts of a negative experience with a dwarf; (b)told Ms Dattilo that she was in fear of dwarfs; and (c)told Ms Shalhoub that she was frightened by a dwarf as a child. 264The accused was also a person who had obsessional traits, particularly in relation to her appearance. Against that background she: (a)expressed her regret that she had been unable to give birth to a "perfect" child; (b)questioned why her otherwise "perfect life" had been upset by OB's birth; (c)questioned why it was that others had "normal" babies when she did not; (d)questioned why she "deserved" something other than a normal child; and (e)stated that she wished she "never even had that baby". 265These statements, in my view, indicate a considerable degree of resentment on the part of the accused towards OB. Perhaps with the exception of the matter in (e), the remaining statements were something of a recurring theme in the period leading up to OB's death. 266The accused also made several disturbing statements to Ms Dinov about jumping off a cliff with OB, throwing her off a cliff, or throwing her in the bin, because OB had not fitted in to her "perfect family". In a not dissimilar vein, the accused also expressed the view to Ms Dinov that it was preferable to deal with a terminal illness than have a lifetime with a dwarf. Further, whilst I do not accept the evidence of Ms Dattilo that the accused said to her that she would have to "get rid" of OB, Ms Dattilo's unchallenged evidence was that the accused had said to her that if OB was a dwarf, she would have to be "taken away". In my view, these statements reflect the level of the accused's resentment towards OB and a desire on the part of the accused to be rid of her. When viewed in the context of the entirety of the circumstances, the multiplicity of such statements, and the terms in which they were made, reflect a great deal more than mere frustration on the part of the accused in dealing with the possibility that OB was in some way genetically abnormal. 267The accused had told Ms Di Nunzio that she "could not cope" if OB was a dwarf. The entirety of the medical testing indicated that OB was completely normal. That was never fully accepted by the accused. There was a distinct lack of affection demonstrated by the accused to OB, and a lack of bonding between them. The accused herself acknowledged that lack of bonding and attributed it, at least in part, to the possibility that OB was a dwarf. The accused's difficulties extended to an inability, on occasions, to even look at OB or pick her up. They also extended to describing OB, at one point, as a "frittata". All of these matters are inconsistent with the proposition that the accused was a caring mother. 268Although the accused's internet research about genetic deformities reflects her anxiety about OB's suggested condition, her searches went well beyond that. A number of them were directed towards the topic of termination of pregnancy where there was evidence of dwarfism. More significantly, two articles appearing in the text fragments retrieved by Mr Watt related to the subject of drowning, one of them specifically to "drowning and sudden cardiac death". Given the manner of OB's death, the significance of that article is obvious. Its importance lies not in the particular search mechanism by which it was obtained, but in the fact that it was present amongst the text fragments located on the accused's computer. The inescapable inference is that the accused accessed that article. The fact that she had done so is consistent with the accused enquiring about methods by which she could rid herself of OB. That, in turn, is completely consistent with what she had said to her friends. 269When RB left for work on the morning of 18 November 2010 he saw no injuries to OB's head. His evidence in that regard was not the subject of any challenge. The injuries found by Dr Van Vuuren are consistent with having been inflicted by a fingernail. Moreover, the fact that there is more than one isolated injury tends against the suggestion that the injuries came about as the result of the accidental passing of a fingernail upon OB's head. They are, however consistent with the application of blunt force, and thus consistent with forcibly immersing OB's head in the water. In this regard, it is not insignificant that the accused was observed to have a wet sleeve at the scene. 270In my view, these circumstances, when combined, establish that the accused murdered OB by intentionally drowning her. Indeed in my view, that conclusion is overwhelming. 271I am satisfied that the Crown has excluded, as a reasonable possibility, that OB drowned by accident as a consequence of being left in the bath due to a lapse in concentration, or an episode of thought blocking, on the part of the accused. Acceptance of such a possibility necessarily assumes that thought blocking did occur at that time, a matter about which there is no direct evidence. More importantly, as Professor Greenberg conceded, the acceptance of the possibility that thought blocking caused the accused to become distracted requires the evidence of (inter alia) the accused's stated intentions to harm OB, be it by throwing her off a cliff or throwing her in the bin, being completely ignored. It was not suggested that those statements were not made by the accused, nor was there any evidence that the accused's mental disturbance should cause me to interpret those statements in a way inconsistent with their express terms. There is, therefore, no basis upon which I should ignore that evidence. 272Further, and even accepting for present purposes that the Bumbo seat was not stable, the suggestion that it was reasonably possible for the accused to be distracted by the necessity to (for example) retrieve a towel or a piece of clothing, to the extent that she left OB in the bath for an extended period, is not consistent with the objective evidence. Even if it were assumed that the accused had to retrieve such an item from the clothes dryer (that being the location furthest away from the bathroom of the accused's premises) the evidence establishes that it takes a maximum of only 29.9 seconds to walk from the bathroom, to the clothes dryer and back. If, for example, the item was in one of the bedrooms, the time taken would be a maximum of only 17.9 seconds. As I have noted, the evidence of Professor Cass is that it takes 4 to 6 minutes for a child to drown. The suggestion that the accused may have suffered an episode of thought blocking at that time, or that she became otherwise distracted, is purely speculative. 273The suggestion that the accused might have been distracted by a telephone call is equally unlikely. The last incoming call is recorded as coming to the accused's telephone from Julie Stockton at 11.34.07 for a duration of 13 seconds. An SMS message was received from Ms Stockton at 11.34.49. The 000 call was not received until 12.12 pm. 274I acknowledge that Professor Buist thought it highly unlikely that the accused could have had an intention to kill, independent of any psychiatric disorder. However, whilst it may be highly unlikely, I am satisfied that the accused did have that intention in the present case. In my view, that is an overwhelming inference to be drawn from a combination of the circumstances to which I have referred. Infanticide 275Infanticide is the first of two partial defences which I have been asked to consider. It was the Crown's submission that this issue was appropriately considered before considering the partial defence of substantial impairment, an approach with which I agree. The relevant statutory provision 276Section 22A of the Crimes Act 1900 NSW is in the following terms: (11)Where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder, she shall be guilty of infanticide and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of such child. (12)Where upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of the opinion that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to such child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that but for the provisions of this section they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide, and the woman may be dealt with and punished as if she had been guilty of the offence of manslaughter of the said child. (13)Nothing in this section shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter or a verdict of not guilty on the ground of insanity, or a verdict of concealment of birth. 277The Crown accepted, correctly in my view, that it bears the onus of establishing that at the time of deliberately drowning OB, the balance of the accused's mind was not disturbed by reason of her not having fully recovered from the effect of giving birth to OB, nor by reason of the effect of lactation consequent upon the birth of OB. The expert evidence 278In his report (Ex AT1 at p. 28) Professor Greenberg stated as follows: "I am of the opinion that during the antenatal (pregnancy) period she was under extreme stress. MB had a stressful pregnancy because of her parents' separation and subsequent divorce, the onset of her gestational diabetes, her anxiety about the possibility of her having a Downs baby and her having to wait for the various test results including the chorionic villus sampling. Also, there was the additional stress with the development of a weeping granuloma of her breast during pregnancy. Subsequently during her postnatal period she developed acute severe pan-anxiety associated with her heightened concern about a genetic abnormality of her daughter. I am of the opinion that her pan-anxiety was part and parcel of her prodromal symptoms of schizophrenia. At this time her beliefs of such abnormalities could have reached delusional or near delusional proportions. MB's other non-specific symptoms such as dysphoric (depressed) mood, irritability, poor concentration and poor attention, sleep disturbance, low energy, social withdrawal, overvalued ideas, perceptual disturbance, brief intermittent hallucinations, unusual thought content and failure to carry out her maternal duties. During her pregnancy birth and subsequent post-natal period the stresses precipitated the progression of her schizophrenic disorder which became overtly apparent in late August 2012. These prodromal symptoms were, in my opinion, significant and the balance of her mind was disturbed by reason of her prodromal schizophrenia and the effect of her giving birth. I am of the view that the balance of her mind was ultimately disturbed by her prodromal schizophrenia. Her daughter drowned at approximately 6 months old and therefore MB likely had not fully recovered from the effect of giving birth. The birth in itself was not the primary reason for her imbalance of her mind but was a significant contributor in aggravating and/or precipitating her prodrome symptoms of schizophrenia illness. Over the long term, MB will continue to suffer from symptoms of her mental illness as there is no cure for schizophrenia and the illness is a (sic) chronic in nature and independent of her postnatal period. I am therefore of the opinion that in my view the accused would, on balance likely have a defence of infanticide under s. 22a (sic) of the NSW Crimes Act 1951 (sic). However, the final determination is best left to the Trier of fact" (emphasis in original). 279Professor Greenberg also said (Ex AT2 at p. 8): "To my mind there is some ambiguity with interpretation of legal infanticide and medical science. I am of the opinion that MB would on balance qualify for this defence. However, there is some doubt because her mind was not solely disturbed by reason of her not fully recovered (sic) from the effect of childbirth. Her mental health had less to do with her puerperium and the effects of child birth associated with the puerperium (post natal blues, post-partum depression and postpartum psychosis). Her mental state has more to do with her predisposition to significant schizophrenic mental illness separate of the puerperium. However her prodromal mental state was likely precipitated to exacerbate it by the significant stresses associated with the puerperium period (emphasis in original). ... In the alternative should MB not meet the definitional requirements for infanticide I remain of the view that MB would likely have a defence of substantial impairment because at the time of the drowning, she was unable to control her actions because she was substantially impaired by abnormality of mind arising from her underlying schizophrenia mental illness" (emphasis in original) 280Professor Greenberg confirmed these opinions when giving evidence (T225 L11-13). Importantly, he confirmed his opinion that the accused's disturbance of mind had not arisen solely as a result of her not having fully recovered from the effects of childbirth. When taken to that part of Ex AT2 in which he had expressed that view, Dr Greenberg gave the following evidence (T225 L11 - T226 L20): "What I am referring to there is the infanticide defence. As I understand it, is that it's a defence that is available during a year after childbirth due to the effects of childbirth. What I am referring to is the fact that it's more of a technical fact, that it's not the hormonal aspect that causes the disturbance. All women who give birth to children have hormonal imbalance postdelivery. It is not the hormones. It is the fact that she had a predisposition to schizophrenia, and the stress of the childbirth and the postchildbirth period precipitated the schizophrenia. The childbirth itself is just a stressor, rather than the cause of the psychosis, the later psychosis. In other words, from a psychiatric point of view, we don't distinguish between psychosis during the postdelivery period, postpeurperium period and psychosis at other times, so for instance, in the accused's situation, occurring two years later. It's part and parcel of schizophrenia, not part and parcel of what they used to call postpartum psychosis, which is a woman who has a psychotic episode because of childbirth. The childbirth is just the stress. It's the schizophrenia that is the illness. So it's more of a technical issue. This defence has a long historical origin, where they believe women during periods of menstruation, or women during periods of childbirth, could develop a disturbance of the mind. We know that's not true, because women give birth to children all the time, or have menstruation periods all the time, and don't become mentally ill. It's not the hormones that cause the illness. Q. So is what you are saying, that although the fact of having given birth to OB has a role to play, it is not the sole role to play, because there was another existence of psychiatric illness? A. Not existence, was emerging. She was predisposed to it, and she was then developing symptoms, yes. Q. So it's not the situation that you would accept that the sole operating consideration at the time of OB's death was that the accused had not fully recovered from the effects of giving birth? A. Well she hadn't recovered from the effects of giving birth. I am talking about stresses involved, but it's not solely because of hormones. " 281Professor Buist also concluded that it was open to the accused to rely upon the provisions of s. 22A (Ex 1 p. 10): "... it is my belief that the death of OB would fit under the NSW Crimes Act 1900 s. 22A as Infanticide. MB at the time was in charge of her child and as such through omission resulted in OB's death. Her judgment, concentration and thinking were also significantly impaired at the time as evidenced by her mental illness prior and subsequently in the extensive notes as well as on this assessment. This illness commences shortly after birth and was directly related to the birth, from which she has still not fully recovered. The child was also under twelve months of age, fit in these criteria." 282Professor Buist expressed the view that the birth of OB was a "clear and important precipitant" in respect of the accused's mental state (T257 L23-26). When asked about the effect of this upon her diagnosis of infanticide Professor Buist said (T258 L27-33): "Now even if she was prodromal prior to the birth of this child, it's still the birth of this child that pushed her over the edge and it was the birth of this child started her being fixated and, you know, in the end on the borderline of delusion, if not delusional, about the child's illness or fictitious illness. So that I still feel it's the birth of this child. The two previous pregnancies, you know, are extra stresses. If you look at it, anyone with post-partum psychosis, it's the coming together of all of the factors and then the child that is the tipping point." Submissions of the Crown 283The Crown submitted that the facts of the present case did not fall within the provisions of s. 22A. It was submitted that whilst the evidence established that the accused suffered from a disturbance of the mind, that condition had not come about by reason of the effect of giving birth to OB, nor by reason of the effect of lactation consequent upon the birth of OB. In short, the Crown submitted that the accused's disturbed mind was due to a multiplicity of factors. 284The Crown submitted that the effect of s. 22A was to permit an accused to rely upon one of two separate considerations, namely that at the time of the relevant act or omission, her mind was disturbed by reason of: (i)not having fully recovered from the effect of giving birth to the child; or (ii)the effect of lactation consequent upon the birth of the child. 285The Crown submitted that the reference to the "effect of lactation" informed the proper meaning of the phrase "the effect of giving birth". It was submitted that such a phrase required that there be evidence that the disturbance of mind had come about by reason of some direct effect of the process of giving birth, as opposed to some condition which had arisen independently as a consequence of other factors. The Crown submitted that the opinions of both Professor Greenberg and Professor Buist supported the conclusion that there were a number of other factors, over and above those stemming from the effect of giving birth, which were causative of the accused's mental condition and that accordingly, s. 22A had no role to play. Submissions of the accused 286Counsel for the accused submitted that it was open to me to find that the circumstances of the present case fell within s. 22A. That submission was not further developed. In particular, counsel for the accused, having been given the opportunity to do so, made no submission in response to that of the Crown in respect of the meaning of the phrase "the effect of giving birth" as it appears in s. 22A. Consideration 287In the course of submissions, the Crown referred me to R v Yihwai and Aku [1963] PNGLR 40, a decision of Mann CJ in the Papua New Guinea Supreme Court. That was the only decision which the Crown had been able to find where a provision such as s. 22A had been considered. I have not been able to find any other decision from my own research of the matter. 288In that case, the co-accused Aku was the father of Yihwai, who was pregnant. Yihwai was prevented by her father from marrying because he intended her to be his "domestic". He instructed Yihwai to kill the child when the child was born, and this she did. The provisions of the Criminal Code Act 1974 (PNG) and s. 3(1) of the Infanticide Ordinance 1953-1956 (PNG) combined to create a provision in the same terms as s. 22A. 289Mann CJ concluded that there was no onus on the defendant to establish that the circumstances fell within infanticide, and that the onus was on the Crown to establish that they did not. The Crown has, in my view correctly, adopted that same position in the present case. 290His Honour then went on to say: "Taking the facts of the present case, the question of causation arises, for it is clear from Yihwai's own evidence that her actions were not caused by anything relating to the processes of birth or lactation. She made up her mind to obey her father before the child was born, and her actions were clearly premeditated. Nevertheless, section 3(1) is not expressed in terms of causation, and in my opinion, Yigwai would be entitled to rely on the section if in fact her mental balance was disturbed as specified, even if it did not appear that her decision was due to that mental disturbance. It seems to me that the section contemplates that any decision or action made or taken in that mental state is not to be examined further as to cause and effect, and that once the condition is fulfilled, the criminal responsibility is limited. The final question therefore comes down to this: does the evidence fairly raise as a defence the proposition that the Accused was in fact in the state of mental disturbance specified? If so, and if the Crown has disproved the existence of that mental state, the Section operates. The substantial evidence on the point is that of Yigwai herself, who said that she was not sick, that she knew what she was doing, that she intended to kill the child, and was obeying her father's instructions. All of this evidence, in my opinion, tends to prove that the Accused was in full possession of her normal mental faculties and was in the same mental condition as before the birth of the child. I think, therefore, that the facts raise no basis for this defence, but tend to negative the state of mind specified". 291The facts in Yihwai were obviously different to those in the present case. The fundamental question in the present case is whether, at the time of the act which I have found caused OB's death: (i)the balance of the accused's mind was disturbed; (ii)that disturbance was by reason of her not having fully recovered from the effect of giving birth to OB. 292The evidence of Professor Greenberg and Professor Buist supports the conclusion that the accused's mind was disturbed at the time she killed OB. The real issue is whether that disturbance was by reason of her not having fully recovered from the effect of giving birth to OB. This gives rise to the question of what is meant by the phrase "the effect of giving birth". 293Although the facts in Yihwai were obviously different, one aspect of Mann CJ's approach is instructive. His Honour construed the term "giving birth" as referring to the actual process of giving birth. That narrow construction is supported by the fact that the only other basis upon which an accused can avail herself of the provisions of s. 22A is where the disturbance of mind is by reason of the effect of lactation. 294Mann CJ's construction is also supported by the fact that the application of s. 22A is limited to circumstances in which the child is under the age of 12 months when killed. It is not open to an accused person to rely upon s. 22A where the disturbance arises after that time, and in a way which is tangential to the process of giving birth. 295Consistent with that approach, it is my view that in order for the accused in the present case to be able to rely upon s. 22A the disturbance of mind must be by reason solely of her not having fully recovered from the effect of the process of giving birth. The evidence in the present case does not support that conclusion. The opinion of Professor Greenberg, in particular, makes it clear that a series of factors placed the accused under considerable stress, and explained her disturbed mind. These included the separation and divorce of her parents, bleeding in the placenta during pregnancy, consequent fears of losing her pregnancy, contracting gestational diabetes, and suffering from a granuloma of the breast. Professor Greenberg's evidence was clear that all of these matters had a part to play in precipitating the accused's schizophrenic illness (T215 L9-30). 296For these reasons I am satisfied that the Crown has discharged its onus and that s. 22A has no application in the present case. SUBSTANTIAL IMPAIRMENT The relevant statutory provision 297Section 23A of the Crimes Act 1900 NSW is in the following terms: 23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (7) If, on the trial of a person for murder, the person contends: (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section:"underlying condition" means a pre-existing mental or physiological condition, other than a condition of a transitory kind. The expert evidence 298Professor Greenberg said (Ex AT1 p. 28): " ... I am of the view that MB would likely have a defence of substantial impairment because at the time of the drowning, she was unable to control her actions because she was substantially impaired by abnormality of mind arising from her underlying schizophrenia mental illness". Submissions of the Crown 299The Crown submitted that any impairment of the accused's mental state was not such as to reduce the offence from murder to manslaughter. Whilst the Crown accepted that the accused was mentally unwell at the time of OB's death, it was submitted that her condition did not amount to a substantial impairment for the purposes of s. 23A(1)(a). 300In the event that I was to conclude that the provisions of s. 23A(1)(a) were established, the Crown submitted, in particular, that in circumstances where OB was a vulnerable child of only 6 months of age, and in circumstances where the accused retained an ability to function, I should conclude that any impairment from which the accused might have been suffering was not such as to warrant liability for murder being reduced to manslaughter. Submissions of the accused 301Counsel for the accused submitted that "all of the evidence goes to substantial impairment on 18 November". Counsel cited, in particular, the opinion of Professor Greenberg in support of that submission. Consideration 302The accused bears the onus of establishing that she is not liable to be convicted of murder by virtue of this section: s. 23A(4). 303In the present case, Professor Greenberg's opinion (which I have accepted) was that at the time of OB's death, the accused was suffering from prodromal symptoms of schizophrenia which were well developed. He expressed the view that such condition impaired her capacity to control her actions (Ex T1 p. 28). That opinion is unchallenged. Professor Buist did not disagree with that opinion, although she was of the view that the accused had in fact developed a psychosis at the time of OB's death. In that sense, her opinion went one step further than that of Professor Greenberg, although the two opinions are not inconsistent with each other. 304There is no reason why I should not act upon such opinions. There is no other evidence which outweighs them. It follows that I am satisfied of the matters set out in s. 23A(1)(a). 305However, the question posed by s. 23A(1)(b) is quite separate. Whether the impairment is sufficiently substantial to warrant liability for murder being reduced to manslaughter is not a matter for a medical expert. It involves me making a value judgment, rather than reaching a finding of medical fact. It is a task which is to be approached in a broad, common sense way: R v Trotter (1993) 35 NSWLR 428 at 431-432. 306In making that judgment I must apply the standards which I regard as prevailing in the community. In R v Bretherton [2013] NSWSC 1036 Harrison J observed (at [25]): "The terms of s. 23A(2) make it plain that the decision called for by s. 23A(1)(b) is not in fact a medical or technical decision, even if the decision itself is likely, if not certainly, to be one that will have been informed by evidence of that type or character. Section 23A(2) makes is plain, as the Second Reading Speech was at pains to emphasise, that the factual matter requiring determination is at large, and is not in any way to be constrained or limited by expressions of opinion about it. It is abundantly clear that the opinion is one that calls up consideration of an objective community standard, being whether the extent of the impairment was so substantial as to warrant liability for murder being reduced to manslaughter". 307The conduct of the accused in the period leading up to OB's death establishes that she regarded OB as imperfect, that she saw her as an interference in her life, and that she wanted to rid herself of her because she perceived, contrary to all medical opinion, that she had a genetic abnormality. She effectively regarded OB as an imposition. 308Whilst accused's desire to learn more about OB's suggested genetic abnormality by researching the internet is understandable, her accessing of an article regarding death by drowning is not. The latter is consistent only with an intention to kill OB. 309Consistent with all of those considerations, there is evidence of a lack of affection being displayed by the accused to OB in the period leading up to OB's death, and an associated lack of bonding between them. Indeed, Ms Dinov's observations on one occasion were that the accused had physically treated OB inappropriately. There is also evidence of the accused having experienced a need to rid herself of OB. Amidst all of this, OB was a defenceless 6 month old child who completely relied upon the accused. 310I have had regard to the medical evidence of the nature of the accused's illness. Clearly, the accused was suffering a disturbance of the mind in the period leading up to the time of OB's death. However, this is not a case in which the accused's mental disorder was constantly at a level which completely prohibited her from functioning. Professor Greenberg acknowledged that there were periods when the accused was functioning, and when she conducted her life accordingly. Professor Buist regarded aspects of the accused's behaviour in the period between June to November 2010, such as attending medical appointments, socialising with friends, attending to her personal appearance and enquiring about test results as being indicative of focus, albeit that there were times when she became overwhelmed and where the focus could not be sustained (T262 L5-8). Moreover, there is no evidence that the accused was suffering from any particular symptom(s) of her illness on the morning of 18 November 2010, much less experiencing some psychotic episode. 311In all of these circumstances, I am not satisfied, bearing in mind the community standards to which I must have regard, that the accused's mental impairment was so significant as to warrant a reduction in her blameworthiness. It follows that the partial defence provided by s. 23A is not made out. Conclusion as to the offence committed by the accused 312It follows from the above that I am satisfied that on the limited evidence available, the accused committed the offence charged, namely the murder of OB. Neither of the partial defences to an allegation of murder are made out. The limiting term 313Had this hearing been a trial before a jury, and had the accused been found guilty of murder, I would have imposed a term of imprisonment. In these circumstances, pursuant to s. 23(1) of the Act, I must nominate a limiting term. In doing so, I do not set a non-parole period. Before nominating such a term I propose to give counsel for the accused the opportunity to put such submissions to me as he considers appropriate. ORDERS 314I make the following order: (1)On the limited evidence available, I find that the accused committed the offence charged, namely that on 18 November 2010, at North Strathfield in the State of NSW, she did murder OB. ********** 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: 13 March 2017