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." Community Forensic Mental Health Service Report 1. A report is now to hand by the NSW Community Forensic Mental Health Service authored by Dr Reece Anderson, Psychiatric Registrar, and Dr Jeremy Resnick, Consultant Forensic Psychiatrist/Director. They conducted a two hour interview with Ms Papley on 5 September 2017 and reviewed an extensive body of documentary material relating to her history of mental illness, including the reports of Dr Stephen Allnutt and Dr Nielssen that were before me during the trial. Ms Papley's present circumstances and treatment 1. Drawing from the report, I note that Ms Papley is living in Evans Head with her partner. She is a carer for him; he has mental health issues and physical disabilities. She is receiving the Disability Support Pension for mental health reasons and works as a cleaner intermittently. She is taking an antipsychotic medication by intramuscular injection every 28 days and intermittent medication for sleep. She is reviewed by her private psychiatrist, Dr Fuller, every six weeks and has been so for the past two and a half years. She is known to the Evans Head Medical Centre where she receives her depot medication from her general practitioner. She is not currently on a Community Treatment Order but has been previously. 2. Dr Fuller confirmed that he had been Ms Papley's treating psychiatrist for the past two and a half years. Prior to that she had been managed by the Community Mental Health Team at Lismore Base Hospital under the care of a psychiatrist, Dr Leeton. Dr Fuller believes that Ms Papley has remained in remission since coming into his care. She is voluntarily maintained on the antipsychotic medication I mentioned above and has adhered to that regime for the time she has been under his treatment. 3. Dr Fuller indicated that since her arrest by police and the subsequent hearing before me, in spite of these stressors, the media attention and reporting requirements to police, there had been no evidence of deterioration in her illness. Dr Fuller indicated that Ms Papley continues to experience periodic sub-clinical psychotic symptoms, which are best characterised as remnant delusional memories. This includes delusional thinking about her mother colluding with police to remove her children from her care. 4. Dr Fuller also indicated that he would be happy to remain Ms Papley's psychiatrist. In his view, the major future issues to be considered included her risk of melancholic depression or psychosis in older age and the required low dose of antipsychotic medication in the long term. He did not think that there were any major risk issues with medication noncompliance, drug and alcohol use, or violence towards herself or others. 5. Ms Papley told the authors of the report that she had good relationships with Dr Fuller and her general practitioner. She said that medication helped her to feel calm and reduced anxious feelings in her stomach and in her mind. She expressed a desire to continue with her current medication for this reason. She also said that she did not wish to have any more children. She has contemplated surgery to prevent further pregnancy and said that she would discuss this with her general practitioner and psychiatrist at her next appointments. The authors were of the view that she showed partial insight into her illness and need for treatment and her judgment was not impaired. Diagnoses 1. Dr Anderson and Dr Resnick made diagnoses of chronic paranoid schizophrenia, cannabis use disorder (in remission) and post natal depression. There was also a differential diagnosis of schizoaffective disorder. Risk factors 1. The authors considered that on a historical basis Ms Papley has a moderate risk profile for potential future violence. Other than the index offence there was no other known episode of threatened or actual physical harm to others, antisocial behaviour, or violent attitude, even when unwell. 2. Ms Papley has a history of unstable intimate and non-intimate relationships as well as problems with unemployment and substance use. She has a history of major mental disorder characterised by multiple psychiatric admissions and difficulties with treatment and supervision, as well as past traumatic experiences suggesting the potential for personality vulnerabilities. On a clinical basis she had partial insight into her illness. She has attended regular psychiatric follow-up and remained adherent to medication with only subclinical residual signs of her paranoid schizophrenia, despite stressful experiences. She does not have current violent ideation and has maintained stability both in terms of her accommodation and her intimate relationship over the past five years. 3. Her current accommodation in the community is considered to be appropriate. She reported that she had supportive neighbours and friends locally and regards continued mental health input as an important dimension in maintaining her wellness. The authors reported that while she remains in remission they would anticipate a low risk of future violence to her partner but the authors considered that this risk may be amplified in the context of relapse of her illness. Medicolegal findings 1. With specific regard to s 39(2) of the Mental Health (Forensic Provisions) Act the authors considered that Ms Papley's safety and/or the safety of a member of the public would not, on the balance of probabilities, be seriously endangered if she were to be released to the community without receiving further in-patient rehabilitation. Risk management recommendations 1. The report made a number of recommendations in terms of treatment, placement, restrictions, monitoring, and implementation. I would endorse these recommendations. Conclusion 1. It is common ground between the parties that I should make an order releasing Ms Papley and requiring her to comply with orders made by the Mental Health Review Tribunal. I accept that is the correct course to take. 2. I make the following order: 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. 1. I recommend that the Mental Health Review Tribunal consider making orders consistent with the recommendations in the report of the NSW Community Forensic Mental Health Service signed by Dr Reece Anderson and Dr Jeremy Resnick and dated 11 October 2017. ********** 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: 19 October 2017