Supreme Court New South Wales Medium Neutral Citation: R v MD [2016] NSWSC 1286 Hearing dates: 14 September 2016 Decision date: 14 September 2016 Before: R A Hulme J Decision: Not guilty by reason of mental illness Catchwords: CRIMINAL LAW – murder – deceased infant daughter of accused – judge alone trial – not disputed that deliberate act of the accused caused the death – where sole issue is defence of mental illness – expert evidence unanimously indicates defence available – accused suffered from major depressive illness with psychotic features – not guilty by reason of mental illness Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) s 15A Criminal Procedure Act 1986 (NSW) s 132 Mental Health (Forensic Provisions) Act 1990 (NSW) ss 38, 39(1) Cases Cited: Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28 Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 Mizzi v The Queen (1960) 105 CLR 659; [1960] HCA 77 R v Falconer (1990) 171 CLR 30; [1990] HCA 49 R v M'Naghten (1843) 8 ER 718 R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 R v Porter (1933) 55 CLR 182; [1933] HCA 1 R v Presser [1958] VR 45 Category: Principal judgment Parties: Regina MD Representation: Counsel: Mr L Carr (Crown) Ms J Manuell SC (Accused) Solicitors: Solicitor for Public Prosecutions Oxford Lawyers File Number(s): 2015/217607 Judgment 1. HIS HONOUR: The accused was arraigned before me this morning and entered a plea of not guilty to a charge that she murdered her 6 week old daughter ("FD") at Wallsend on 24 July 2015. 2. The law provides that nothing may be published or broadcast in a way that would identify the child: s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). To that end there can be no reference to the names of members of her family including the accused. 3. The accused applied for an order that she be tried without a jury and the Crown consented. Accordingly I made a trial by judge alone order pursuant to s 132 Criminal Procedure Act 1986 (NSW). Crown case 1. Evidence in the Crown case establishes the following matters; none of which are disputed. 2. The accused was born in a small village in Senegal in 1989. She married her husband ("OD") in Senegal in April 2007. OD travelled to Australia alone in late 2007. Their daughter ("AD") was born the following March. She has significant congenital neurological abnormalities and she is deaf and cannot speak. The accused and AD were not reunited with OD until they moved to Australia on 3 April 2014. 3. In 2015, the accused lived with her family in Wallsend. OD's brother ("MS") and sister ("KD") also lived with them. 4. The deceased was born at John Hunter Hospital on 9 June 2015. The pregnancy was planned. Both the pregnancy and the delivery were uneventful. The baby was not afflicted with the same genetic condition as her sister and she was brought home after two days. 5. The family home at Wallsend had three bedrooms. MS and KD each had their own room and the accused, OD and their two daughters slept in the third bedroom. OD and AD slept in the bed while the accused and the baby slept on a foam mattress on the floor. Observations of the accused after the birth 1. OD reported that following the birth of the baby his wife was happy and had no problems. The first time he noticed any changes was two days before the child died. 2. MS observed that the accused was "not one hundred per cent herself" when she came home from hospital. He noticed that she wore many layers of clothes and complained of being cold. He asked her about it and she replied, "When you give birth you need to stay away from the wind. The wind is not good for you." He also said that before the birth the accused was always talking and laughing but not afterwards. However she was breastfeeding the baby and was described as a "normal mother". 3. KD, who had known the accused since they were children and had considered her to be a close friend, did not notice anything amiss. The accused never said anything to her about her mental state. Tuesday 21 July 2015 1. On Tuesday 21 July 2015 MS took a sick day and stayed home from work. At around midday he saw the accused sitting on the lounge with the baby in her arms. They had the following conversation in the Pulaar language: "Accused: I am not okay. MS: Why? Accused: I am just not okay. MS: It happens sometimes because you sometime people come here and get very bored and they even feel like they want to go back home. Accused: I'm not feeling that way like I want to go home. But I am not okay. MS: Did you tell it to [OD]? Accused: Yes. MS: Sometimes it is good to get out and do something. It's good to get out of the house. Accused: I don't know." Wednesday 22 July 2015 1. At some point the following day the accused told her husband that she did not feel happy and that she felt unwell. She said that she felt unhappy in her heart and that she was feeling very low. OD became worried and suggested that they visit their doctor to see what the problem was. The accused said that she did not feel like going anywhere so OD offered to go to the doctor for her. 2. That evening there was a conversation about an upcoming baby naming ceremony. According to MS, the accused seemed to be alright and spoke about getting her hair done for the occasion. Thursday 23 July 2015 1. On Thursday 23 July at about midday the accused was in the living room with the baby. According to MS, she seemed cold and not herself. 2. OD attended Dr Rita Singh's general practice at Mayfield that afternoon. He told Dr Singh that the accused did not want to do anything inside the house and, in response to questioning, he said that he thought his wife might be depressed. Dr Singh made an appointment for the accused to see a mental health nurse at 4.00pm on Monday 27 July and wrote a prescription for the anti-depressant medication, Lexapro (one 10mg tablet per day). Dr Singh told OD to take the accused to the hospital if he was worried. 3. OD filled the prescription at a chemist on his way home. When he arrived home he gave the accused instructions about taking the medication and she took a tablet at around 4.00pm. After a while the accused seemed to OD to be very happy. The couple then spoke on the telephone with some friends in Sydney. They were organising the baby naming ceremony. The accused continued to appear happy throughout the evening. 4. At some point the accused phoned her friend, Maimouna Camara, and told her about the party for the baby which would be held on 1 August 2015. Ms Camara described the accused as sounding "very happy" about the upcoming celebration and sounded normal. Friday 24 July 2015 1. OD woke on Friday 24 July 2015 at 2.00am. His shift at the factory where he worked started at 3.00am. The baby was crying and he picked her up. The accused told him that she had pain in her body and she was not feeling well. OD phoned his supervisor and said that he was not coming into work because he had to look after his wife. 2. The accused breastfed the baby. OD then looked after the child until the accused fell asleep. OD laid the baby alongside the accused on the mattress. He returned to bed but did not sleep as he was worried about his wife. 3. OD got up at 7.00am in order to take his eldest daughter to an 8.00am medical appointment at the Royal Newcastle Centre next to the John Hunter Hospital at New Lambton. The accused was awake and the baby was asleep next to her. OD asked the accused how she was and she replied that she was okay. 4. The accused fell asleep. At this time she was naked and the baby was wearing baby clothes. They were both on the mattress covered by blankets. 5. OD left with AD to attend the appointment. They arrived home shortly before 9.00am. They entered the bedroom where the accused and the baby were together. OD saw a wooden-handled knife near the baby's head. He recognised it as one that was usually kept in the kitchen. He approached the mattress and saw that there was blood coming from a cut on the baby's neck and blood on the mattress. He picked up the knife because he did not want the accused to hurt herself. She was still lying on the mattress and the baby was lying next to her. 6. OD ran from the bedroom carrying the knife. AD left with him. He ran into KD's bedroom and woke her. He was holding the knife and screamed out that the accused had killed the baby. He threw the knife into the bathroom. 7. KD went to the doorway of the accused's bedroom and saw her and the baby on the mattress. She said to the accused, "Why did you do this?" The accused replied, "I am depressed". The accused remained under the blankets and did not move. 8. KD went into MS' bedroom where she woke him up and told him what had occurred. OD and KD went into the lounge room with AD. OD was screaming and crying. MS rang triple 0. 9. Police attended very quickly and they were directed to the accused's bedroom. Before entering they saw the knife on the bathroom floor. In the bedroom the accused was still lying on the mattress on the floor. The baby was also lying on the mattress and police saw she was clothed and half wrapped. There was blood around her neck and head. There were no signs of life. An ambulance was called. 10. Police lifted up the sheet and the accused just lay there. She was dressed in black and white pants, a long sleeved shirt and a pair of socks. She had blood stains on the back of her left arm. 11. Senior Constable Burton said, "Get up, you're under arrest for murdering your baby." The accused did not respond. The direction was repeated and again the accused continued to lay there with no response. 12. More police arrived. The accused was handcuffed and lifted from the mattress. She remained unresponsive. She was taken outside and placed in a police vehicle. 13. When ambulance officers arrived they found the baby lying on the mattress on her back. There was a small pool of blood around her neck and on the mattress. She was not breathing and there was no pulse. She was still very warm to the touch. It was found that her head was almost decapitated. There was no other blood around the room. The paramedic advised police that the baby was dead and there was nothing that could be done. 14. The accused was taken to Waratah Police Station. Arrangements were made for an interpreter and a support person to attend. 15. Ms Camara attended and was present as police explained to the accused that they intended to seize her clothing. The accused had a blanket over her face and her head was down on the table. The accused told Ms Camara that she was tired. They then went into another room with police so that the accused's clothing could be taken. The following conversation occurred in the Pulaar language: "Camara: Hello. Accused: Mmm. Did they bury the baby? Camara: What baby? (The accused did not respond) Camara: Do you even know how you got here? Accused: No. Camara: Are you okay? Accused: I am tired. I want to sleep. I haven't slept since having the baby. I am not happy." 1. A Pulaar interpreter arrived and the accused was brought into an interview room. When asked to state her name and spell her family name she replied, "No I can't". Police said that they were investigating the murder of the baby and asked if she understood. She replied, "I don't know that". She confirmed that she had received legal advice and did not want to be interviewed. Police asked her whether she murdered her child and she replied, "No I didn't". Police asked if she could tell them anything that could assist their investigations into the murder of her daughter and she replied, "I don't know nothing about it". Police asked who murdered the child and she replied, "I don't know". They then asked whether she was willing to say where she was or what happened that morning and she said, "no". 2. Crime scene officers attended the home and conducted a forensic examination. They found the wooden handled knife on the bathroom floor. It was about 25cm long with the blade being about 15cm long and there were blood stains on both the handle and the blade. Another knife was found underneath the foam mattress. It was 24cm long but there were no blood stains on it. 3. Subsequent DNA testing revealed that blood staining on the handle and blade of the knife located in the bathroom matched the DNA profile of the deceased. Swabs taken from blood staining on the leg of the pants and the sleeve of the top worn by the accused matched the DNA profile of the deceased. The deceased's DNA was not located on the second knife which was found underneath the foam mattress or on any of the clothing worn by OD, MS or KD. 4. An autopsy examination was conducted on 27 July 2015. The forensic pathologist concluded: "This infant died from the effects of partial decapitation due to an incised wound to the front of the neck. There was complete transection of the trachea, spinal column and spinal cord, major vessels and all muscles of the neck. There were microscopic evidence of blood aspiration in the lungs and fresh bleeding around the deep wound edges, in keeping with the infant being alive at the time the wounds were inflicted. The mechanism of death due to transection of the major neck vessels is difficult to determine and may be exsanguination (blood loss) or air/gas embolism as air is 'sucked' into the transected major veins, circulates in the vessels and accumulates in the heart or brain causing acute heart failure or a massive stroke. In either scenario, death would have been rapid and inevitable once the vital vessels of the neck were transected." Defence case 1. The accused does not dispute that her deliberate act caused the death of the deceased. She contends that at the time she did so she was mentally ill so as not to be responsible for her actions according to law. She invites me to return a special verdict pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) that she is not guilty by reason of mental illness. 2. In these circumstances it is necessary for her to establish on the balance of probabilities (Mizzi v The Queen (1960) 105 CLR 659; [1960] HCA 77) that at the time of killing her child she was labouring under such a defect of reason, from a disease of the mind, as not to know the quality and nature of her act, or, if she did, that she did not know what she was doing was wrong: R v M'Naghten (1843) 8 ER 718. See also R v Porter (1933) 55 CLR 182; [1933] HCA 1. 3. The various authorities in this area of the law, which I will not pause to further cite, establish that a "disease of the mind" may be literally a state of disease or it may be a disorder or disturbance arising from some condition which could be temporary or could be of long standing and it does not matter whether it is curable or incurable. It may arise from some mental malfunction with no apparent organic basis or from a cause which is unknown. What is important is that it results in the function of the reason, memory or understanding of a person being thrown into a state of derangement or disorder. A defect of reason, memory or understanding involves a disorder of the capacity to reason such as one that prevented the accused from knowing what she was doing in that she did not know the physical nature or quality of the act or she did not know that it was wrong according to the ordinary standards of reasonable people in our community. 4. Where it is claimed that an accused did not know the act to be wrong the issue is whether because of a disease, disorder or disturbance of the mind the accused could not think rationally of the reasons which, to ordinary people, would make the act right or wrong. If the accused could not reason about the matter with a moderate degree of sense and composure it would be open to find that the person did not know that what they were doing was wrong. 5. The consequence of finding a person not guilty on the ground of mental illness is that the presiding judge must then consider whether the accused's safety or the safety of any other member of the community would be seriously put at risk by the person's release. If it would not, the judge may order the release of the accused into the community either unconditionally or upon conditions that are thought to be necessary for the welfare of the accused and that of the community. On the other hand if it is not appropriate to release the accused immediately an order can be made that the accused be detained in custody until released by due process of law. That would mean not only that the accused remains in custody until a decision is made to release her but also that she would become a forensic patient and fall under the supervision of the Mental Health Review Tribunal. If there was a jury determining this matter I would ordinarily explain the composition of the Mental Health Review Tribunal and its various functions. However I am well aware of those matters and I do not think it is necessary to recite them. Dr Richard Furst 1. Dr Richard Furst is a consultant forensic psychiatrist who has a considerable degree of experience in this field. He saw the accused at Silverwater Women's Correctional Centre on 16 March 2016 with the assistance of a Pulaar interpreter. He also reviewed relevant documents before preparing his report dated 1 April 2016. 2. Dr Furst took a detailed history from the accused. In short it is of some significance that prior to the birth of the deceased she did not experience any symptoms of mental illness. She told Dr Furst that she did not suffer any problems during her pregnancy and described feeling happy. She had a normal delivery. There was an onset of depression in the weeks following the birth. The accused described feeling depressed, having difficulty thinking straight, not sleeping adequately and feeling anxious. Her mood continued to deteriorate to the point that she felt despondent, hopeless and suicidal. She felt more anxious and threatened. She told Dr Furst that she also began to hear voices stating, "I was hearing people calling me. Weird voices." 3. The accused said she came to believe that her baby was "something else", like it was "not my baby, something else I was holding and had to deal with. It was quite scary. More like a devil thing I was holding." She said she became convinced that it was not her baby and was a "devil thing". Dr Furst noted that this was highly suggestive of Capgras' delusion. He said her "voices" were also telling her it was not her baby. 4. The accused said she became highly anxious, worrying that something bad would happen to herself and her baby. She described this as a "bad feeling", which was reinforced by the voices she was hearing. She was unable to sleep. She was thinking a lot about death and believed she was not existing. Dr Furst noted these were apparent nihilistic delusions. The accused also said that she felt hopeless and useless. 5. Dr Furst noted that the medical records from Justice Health were consistent with the accused being in a state of severe depression and psychosis after her arrest. This included her being unresponsive at times, confused, hopeless, suicidal, hearing voices, struggling to think clearly, and tearfulness. She said the voices had been telling her to hurt her baby prior to the offence. 6. Dr Assad Saboor assessed her on 27 July 2015, three days after the offence, and found her to be apparently humming continually to herself but otherwise was unresponsive. 7. When assessed with the assistance of an interpreter on 28 July 2015 she said that her life was "meaningless"; she said she could "feel nothing"; and said she was hearing voices that were trying to "switch her off". Dr Furst again said that this was suggestive of nihilistic delusions and auditory hallucinations which were fairly typical of a severe melancholic and psychotic depression. 8. Dr Furst also noted an assessment made by a psychiatrist on 8 September 2015. At that time she remained withdrawn, had signs of psychomotor retardation, and was thought to be pervasively depressed. The psychiatrist on that occasion diagnosed a severe depressive episode with psychotic symptoms which had its onset in the immediate post-partum weeks, making it more likely than not her severe depression and psychotic symptoms were present at the time of the alleged offence. 9. Dr Furst said that the accused met the criteria for a diagnosis of "Major Depressive Disorder (melancholic and psychotic features) – post-partum onset". He said that the accused had a history of severe depression of post-partum onset associated with melancholic features and mood-congruent psychotic features. She continued to manifest features of a severe depressive disorder. 10. Dr Furst said that at the time of his assessment the accused remained depressed in mood, anxious and despondent. Her sleep remained poor. She was able to recall being "very sick" after her arrest, including not talking. She had been managed in the Mental Health Screening Unit (MHSU) throughout her incarceration, with unsuccessful attempts to manage her in the "step-down" unit, where she had apparently been prone to threats by other inmates as a result of her alleged offence. She was agreeable to further psychiatric treatment. 11. Dr Furst assessed the accused as being fit to be tried on the standards referred to in R v Presser [1958] VR 45 and Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41. However on the question of a mental illness defence he said: "In my opinion, [MD] was suffering from a disease of the mind in the form of a severe major depressive disorder with melancholic and psychotic features of postpartum onset. The combination of nihilistic delusions, Capgras' delusions [belief that her baby had been replaced, was some type of 'devil' and was not her baby] and associated auditory hallucinations means that she was suffering from a defect of reason in the McNaughton's sense as a product of her underlying severe depressive disorder. In my opinion [MD] did not understand that her actions were wrong as she was driven by her severe depression and psychotic symptoms and was unable to reason about the wrongfulness of her actions with a moderate degree of sense and composure. She has the mental illness defence available to her." 1. Dr Furst concluded his report by indicating that the accused should remain under the care of mental health clinicians/psychiatrists working for Justice Health, probably involving further treatment at the MHSU. Transfer to the Bunya Unit at Cumberland Hospital may well offer the best psychiatric care in a multi-disciplinary setting in his view. An alternative placement would be to the Forensic Hospital at Malabar. He also indicated that she would benefit from ongoing treatment with a combination of antidepressant and antipsychotic medication. Psychological input would also be of benefit to her in addressing her grief issues and adjustment issues over the longer term. Dr Jonathon Adams 1. Dr Jonathon Adams was engaged by the Crown to assess the accused and provide a report. He saw the accused on 14 May 2016 and reviewed relevant documents. His report of 9 June 2016 was tendered. 2. Dr Adams' report is lengthy and useful. The history he obtained from the accused is consistent with that obtained by Dr Furst. 3. Dr Adams was also of the view that there was no evidence to suggest that the accused suffered from any major mental illness prior to giving birth to the deceased. The deterioration in her mental health followed that birth. 4. At the time of assessment, Dr Adams considered the accused to be manifesting ongoing symptoms of major depression. She endorsed continuing concerns about the deceased with the possibility of the baby being replaced and resembling a devil. In Dr Adams' view this was indicative of a residual delusional belief. 5. Dr Adams confirmed the opinion of Dr Furst that the accused was fit to be tried. However in relation to the defence of mental illness it was his view that at the relevant time the accused was suffering from a major depressive illness with psychotic symptoms. He referred to this also being known as post-partum psychosis. 6. Dr Adams felt that, on balance, it was reasonable to conclude that the accused was suffering from symptoms of a major mental illness at the time of the alleged offence which, on his understanding, would fall into the legal category of a "disease of the mind". (Whether it does is a question of law: R v Falconer (1990) 171 CLR 30 at 49; [1990] HCA 49). 7. It was Dr Adams' view that it was reasonable to conclude that the accused's continuing symptoms of a severe mental illness would have impacted upon her capacity for rational thought, and could be considered a "defect of reason". 8. He considered it was also reasonable to suggest that the accused endured concerns regarding her newborn daughter around the time of the alleged offence that were based in mental illness, including that the child had been replaced, and she resembled the devil. He considered it plausible from a psychiatric perspective that these symptoms acted as motivating factors for the alleged offence. 9. Dr Adams believed that the accused could be considered not to have had the capacity to reason about the alleged offending behaviour with a moderate degree of composure given the likelihood that she was experiencing ongoing symptoms of mental illness at the material time. He said that if it was accepted, and I interpolate that I do, that the accused was likely acting upon her delusional concerns that her newborn daughter had been replaced and resembled the devil it was reasonable to suggest that she did not have the capacity to reason about the moral quality of what she was doing. 10. As a consequence of the foregoing matters Dr Adams believed that the defence of mental illness was available. 11. Dr Adams concluded his report by indicating that the accused requires ongoing assertive input from mental health services. He considered she would benefit from continuing psychiatric medication, and psychological and social management strategies, together with placement in an area where she can receive the most appropriate care in the correctional setting. Determination 1. I am satisfied beyond reasonable doubt that it was a deliberate act of the accused that caused the death of the deceased. Before considering the further essential element the Crown is required to establish to make good a charge of murder, that the accused intended to kill or cause grievous bodily harm, I am required to consider the mental illness defence: Hawkins v The Queen (1994) 179 CLR 500 at 517; [1994] HCA 28; R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226. 2. I am satisfied on the balance of probabilities that the accused was suffering from a disease of the mind in the form of a major depressive illness with psychotic features. Whilst I am satisfied that she appreciated the nature and quality of her act, her reasoning as a result of this disease of the mind was certainly defective in the sense that her ability to think rationally was significantly impaired; for example, her belief that her baby had been replaced by the devil. I am also satisfied that she did not know that what she was doing was wrong in that she was deprived of the ability to reason with even a moderate degree of sense and composure. Verdict 1. I find the accused not guilty by reason of mental illness. Orders 1. I make the following orders: 1. The accused be detained pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW). 2. The accused be detained at such place and in such manner as may be determined from time to time by the Mental Health Review Tribunal until she is released by due process of law. 3. The Registrar is to notify the Minister for Health and the Mental Health Review Tribunal as soon as practicable of the terms of these orders and is to provide the Mental Health Review Tribunal with copies of the transcript of the proceedings, the exhibits and this judgment. ********** 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: 14 September 2016