R v Papley (No 3) [2017] NSWSC 1415

Supreme Court New South Wales

Medium Neutral Citation: R v Papley (No 3) [2017] NSWSC 1415 Hearing dates: 17 October 2017 Decision date: 17 October 2017 Jurisdiction: Common Law Before: R A Hulme J Decision: Ms Papley be released from custody subject to a condition that she comply with such orders as may be made from time to time by the Mental Health Review Tribunal Catchwords: MENTAL HEALTH – s 39 Mental Health (Forensic Provisions) Act 1990 – disposition following judge-alone murder trial – special verdict of not guilty by reason of mental illness – assessment of risk of danger to the person or the public if release into community – conditional release order made Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39 Cases Cited: R v Papley [2017] NSWSC 1068 R v Papley (No 2) [2017] NSWSC 1112 Category: Principal judgment Parties: Regina Karen Papley Representation: Counsel: Mr L Carr (Crown) Mr C Davenport SC (Ms Papley)

Solicitors: Solicitor for Public Prosecutions Rice More & Gibson File Number(s): 2016/82780

Judgment 1. HIS HONOUR: Ms Karen Papley (a pseudonym used because of the non-publication provisions of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)) was charged with the murder of her daughter Astra (her middle name: R v Papley (No 2) [2017] NSWSC 1112). The indictment alleged that the offence occurred "between 25 December 2000 and 25 December 2001 at an unknown place in the State of New South Wales". 2. On 18 August 2017, after a trial by judge alone, I returned a verdict of not guilty by reason of mental illness pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW). 3. The child had not been seen since the period alleged in the indictment. No body has ever been found. I was satisfied beyond reasonable doubt that Astra's death was caused by a deliberate act or omission of Ms Papley, although I was unable to determine what that act or omission was. 4. Ms Papley had a long history of mental illness and there was an element of speculation about the reason why she killed her daughter. I indicated in my judgment that it seemed most probable that the child was killed in some way because she was incorporated into Ms Papley's persecutory delusional beliefs and that Ms Papley acted in some way to save the child from Ms Papley's mother. 5. A full account of the evidence, both as to the offence and Ms Papley's history of mental illness, is set out in my judgment of 18 August 2017: R v Papley [2017] NSWSC 1068. It was the joint position of the parties that the defence of mental illness had been made out. I was satisfied that: "[O]n the balance of probabilities…at the time [Ms Papley] caused the death of the deceased by an unknown act or omission she was labouring under such a defect of reason from a disease of the mind, namely a form of schizophrenia and its effects, that she did not know that what she was doing was wrong in accordance with ordinary standards of right and wrong adopted by reasonable people": R v Papley at [207]. 1. Ms Papley had been on bail prior to and during the trial. Following the return of my verdict, I continued bail and requested a report from the Justice Health and Forensic Mental Health Network as to the disposition of the matter pursuant to s 39 of the Mental Health (Forensic Provisions) Act. Section 39 provides as follows: 39 Effect of finding and declaration of mental illness (1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate. (2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release. (3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order. 1. A report by Dr Olav Nielssen, psychiatrist, was before me in the trial. In the final paragraph Dr Nielssen said: "Ms [Papley's] condition has been stable for many years as a result of consistent treatment with a low dose of potent antipsychotic medication given in a reliable way by long acting injection. She does not have any children under her care, and is in fact acting as a carer for her more disabled partner and his menagerie. Hence, it is my opinion that neither Ms [Papley] nor any member of the community would be serious[ly] endangered if she were to be granted community release on the standard conditions recommended by the Mental Health Review Tribunal, which would in effect continue her current treatment, albeit under closer supervision and review."