Supreme Court New South Wales Medium Neutral Citation: R v SP [2017] NSWSC 1579 Hearing dates: 13 November 2017 Decision date: 23 November 2017 Jurisdiction: Common Law - Criminal Before: Hidden AJ Decision: I find the accused not guilty by reason of mental illness. Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act, I order that the accused be detained in a correctional facility, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law. Catchwords: CRIMINAL LAW – murder - judge alone trial - defence of mental illness – child killed by mother during psychotic episode - special verdict of not guilty by reason of mental illness Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: Hawkins v The Queen (1994) 179 CLR 500 R v McNaghten (1843) 8 ER 718 R v Minani (2005) 154 A Crim R 349, [2005] NSWCCA 226 R v S [1979] 2 NSWLR 1 The King v Porter (1933) 55 CLR 182 Category: Principal judgment Parties: Regina SP Representation: Counsel: Mr J Crespo (Crown) Ms J Manuell SC (Accused) Solicitors: Solicitor for the Director of Public Prosecutions Legal Aid Commission NSW File Number(s): 2016/2075235 Publication restriction: No Judgment 1. HIDDEN AJ: The accused is on trial before me, sitting without a jury, for the murder of her 2 year old daughter at the home where they lived in Miller on or about 10 September 2016. I shall refer to her daughter simply as "the child". The only issue in the case is whether the accused has made out the defence of mental illness. After a consultation with her in custody on 26 November 2016, Dr Adam Martin, forensic psychiatrist, found her to be fit to stand trial. 2. The undisputed Crown case is that in the evening of Saturday, 10 September 2016 or the early hours of the following day, the accused drowned the child in the bath during a psychotic episode. She placed a white towel over the child's body and left her in the bath. Some time later, on Sunday, 11 September, she left the home and drove away in her car. 3. That afternoon she was driving in the Katoomba area. She was observed to be speeding and was involved in a motor vehicle accident. Police who attended saw her sitting in the middle of the roadway, holding a bible. She did not answer police enquiries about what had happened, but asked whether they believed in God and made repeated references to God, the devil and biblical matters. The police formed the view that she was mentally disturbed and took her to Blue Mountains Hospital, where she was admitted. 4. At the hospital she provided staff with inaccurate personal details, and falsely stated that the child was being cared for by her (the accused's) father. She gave a history of mental illness, to which I shall refer later, and disclosed that she had recently ceased taking medication prescribed for her. She also said that she had been stressed over the previous week because she had broken up with her boyfriend. I shall also refer to that gentleman later. She was assessed by Dr Pauline Byrne, psychiatrist, who reported that her presentation was "consistent with a relapse of psychotic symptoms with a history of a diagnosis of schizophrenia." She was presenting "with disorganised behaviour, guarded, paranoid and religious thinking," with a history of "deterioration of mental state over the past week in the context of non-compliance with medication and the stressor of ending a relationship." 5. On Tuesday, 13 September 2016, the body of the child was found in the bath at the Miller home by a friend of the accused, Samantha Cranswick. As a result, Detective Senior Constable Brendon Barsic and Detective Senior Constable Marco Buttigieg attended Blue Mountains Hospital, where they had a recorded conversation with the accused. She admitted having drowned the child. The effect of what she recounted was that she was engaged in a deranged form of exorcism, at the expense of the child's life. 6. Among other things, she said: I love my child, but that wasn't my child. There was something in her. Something evil and I saw it. You don't have to believe me but I know and I love my child I wouldn't be crying if I didn't love my child. That wasn't my child. ... In the last few days I've seen what the world really is. And there's a lot of bad in this world. And I saw my child for who she really was. And that wasn't my child. That was, something evil in her. And I saw everyone I thought I loved and trusted, that they're evil. And because I've got a soft heart I didn't see it. But in the last few days it was like I saw the truth. And it, to me where we live is hell. This isn't the real world. Everything's a delusion. 1. In relation to her driving in the Katoomba area, she added: And that's why I sped. I was speeding my car to prove the power of God, because God is power. Not the devil or evil. She said that she was "guided" to come to the Blue Mountains area. 1. In the course of this conversation she also said: I saw her for who she was and I was being tricked. Because that's, that's what the devil whatever you want to call him Lucifer, whatever that's what he does. And as I said over the last few days I've been acting different I've stopped... drinking and I been praying a lot and I don't know it's like I just, I was awake. I usually sleep a lot, I don't eat. I've been, been awake like I can't sleep and for some reason I saw, saw things that other people don't see and I drowned her because I realised that wasn't my child inside her because I believe that we're spiritual, we're souls and that wasn't my child. I drowned her to save her and I believe now she's in heaven. ... I put her head under the water because I never realised before she hated water and I didn't know why. And she hates getting her face wet and I didn't know why and then now I know why. Because there was something evil in her and evil but evil doesn't like water. Asked what she had done when she put the child's face under the water, she said, "I just left her until her soul left her... and the evil thing was gone." She said that she then "just prayed and read the bible." 1. The accused was taken to Katoomba Police Station, where she participated in a lengthy electronically recorded interview. What she had to say about drowning the child was to much the same effect. It is sufficient to refer to a few of the passages in that interview. 2. She said that the child had been really disobedient to her and that she did not understand why... "because I'm so good to her and she always whinges and only to me." She said: "... in that day I think it was Thursday or Friday, I saw like everything that's good, like I saw the good and bad in the world and there was bad in my child, like there was something evil in my child... ." She added: "And there was bad in my own child and I didn't drown her. It was more like I was trying to save her because there was something evil in her and I, I know that, like I learnt that if evil things don't like water, they don't like getting their head in the water, especially, I think, if you have a strong connection to God. Like kind of like holy water, if you've ever watched scary movies. Well, it kind of makes sense." 1. She said that the child was "saying all this stuff," and that she did not "get her." She said of the child, "She's a 2 year old, how come she's saying all this stuff?" She added: "And she was, I'm not saying my actual child was evil. Maybe something happened in the last few days, like it's happened to me, something went bad in her? And I, I wanted it to get out because it wasn't my child. I would never hurt my child, I love my children, all my children. But that wasn't my child." 1. Asked what she thought would happen when she held the child's head under water, she replied, "She'll return to heaven." She said that she placed a clean white towel to cover her "out of respect." Asked what her intention was in putting the child in the bath, she said, "to get rid of the evil in her." 2. She told police that she had broken up earlier that week with her partner, Migel Mediarito, with whom she had had a relationship since late 2015. Her description of the circumstances of the break up was bizarre. According to her, he told her he had a nightmare that the two of them had been in a restaurant and two doctors attended, saying that "there was evil here and there." She said that after this there were "supernatural things happening to us." She said that she didn't want to be around him, that she didn't like "his vibe" and that he was "scared after that happened." She felt that he had changed. She added that she went to see a psychic because she did not know what to do. She described a deterioration of the relationship thereafter, and she told him "to get out because he's scaring me." 3. She also told police about her movements on the Sunday, 11 September from leaving home in the morning to her driving in the Blue Mountains area in the afternoon. She described the whole process as having been guided by God. It included her going to the Palm Beach area, where she had earlier lived. There she "baptised" herself by immersing her head in the water of Palm Lake. 4. She acknowledged having provided a false name and address at the hospital because she knew that she was going to "end up in gaol, because I knew what I'd done." Background 1. The accused has two other children, twins, and the father of all three children is Mr JF. Not long after their birth, the twins were placed by the Department of Community Services into the care of his adoptive parents. He and the accused separated after the twins were born, but they maintained a casual sexual relationship. It would seem that he was not aware that the third child was his. He knew of the pregnancy but the accused had told him that he was not the father. In his statement to the police, Mr JF described observing the accused experiencing delusions: talking to magpies, who she believed had been sent to her by God, and believing she was receiving signs through the television. 2. In a statement to police, the accused's recent partner, Mr Mediarito, said that he did not live at the accused's home but stayed there often. He observed that she was "on constant medication." He recounted her telling him that she saw aliens and making "really bizarre comments." He also said that she used always say that her body "makes other people sick", something which he described as "her biggest thing that she used to always bring up." 3. He had never seen her mistreat the child. In the weeks leading up to the child's death, he observed her to become "very paranoid" about a ghost in the house. She became "obsessed" with the bible and God. He observed her to be protective of the child and would read her the bible. He was with her on the night of Thursday, 8 September 2016, after the accused had called him to express fear that the authorities would take the child away. They were watching a television program and she told him that there were "messages there on the TV." 4. On the night of the Saturday, 10 September, he called the accused but she did not answer. He went to the house, and through a window he saw her sitting on a couch in the loungeroom with the bible in her hand. He did not see the child. He said that he wanted to talk to her, but she said, "I can't trust anyone right now. I can't trust you. I learnt that Catholics are evil; even what your family believe in, is wrong. Just trust in God." They argued and she refused to let him in, yelling, "Just go away." After further argument, he left. He did not see her again, but during the following morning he received two text messages from her, one of which was, "If you need to talk to someone, talk to God, not me." 5. Also in evidence is a reasonably lengthy statement of Sophia Edwards, a friend of the accused since their high school days. Ms Edwards described the accused as having "struggled a lot" with depression, suicidal thoughts and self harm. She also recounted occasions when the accused described to her delusional experiences: speaking of aliens, of her phone being tapped and being able to listen in to other people's conversations, and hearing noises over the phone which she thought were signals. She also referred to the accused telling her about "supernatural things that happened in her house." 6. In the morning of Saturday, 10 September 2016 the accused rang Ms Edwards and asked to have her daughter, Oriana for the day. She said that she wanted to take Oriana to her house to use her "to get the demon out of her house that was causing all the supernatural things." Ms Edwards recalled that the accused had once told her of a dream in which two young girls came into her house and made the demon go away. After discussing the matter with her husband, Ms Edwards refused the accused's request. 7. Later in the afternoon of that day, the accused arrived at Ms Edward's house with the child. All in all, it was a strange encounter. Among other things, she told Ms Edwards that the child was not really hers but was a child of God. She said that she herself needed to be baptised, and that the child "has an old soul in her which needs to be removed." She said that the child was evil, and that she had had a spiritual awakening, "and this wasn't the real world and that heaven was the real world and something big was going to happen." Ms Edwards described her as being in a strange mood, adding that she had never seen her like that before. 8. Early the following morning, the accused arrived at Ms Edward's house unannounced. Although she looked better, she was apparently laughing and Ms Edwards asked her what had happened the previous night, why she was laughing and what she was seeing. The accused talked about going to church that day and demanded to be allowed to take Oriana with her. Among other things, she said "How can you stop her from going to God?" Ms Edwards became frustrated with her and demanded that she leave. 9. At the time the accused was attending Granville TAFE, where she was studying a course concerned with community services. One of her fellow students, Ahmad Seddiqui, made a statement to police in which he recounted having seen her at the TAFE on the Friday, 9 September. She appeared to be stressed and, in the course of a conversation in which he was concerned to know that she was alright, she said, "Do you believe in a different world?" 10. Since late July 2015, the accused had been attending a general practitioner, Dr Don Ramjan. She had also been a patient of the local Community Mental Health Team, where she was seeing a psychiatrist. She gave Dr Ramjan a history of postpartum depression and psychosis. In a statement to police, Dr Ramjan recounted her describing symptoms of a delusional nature. This included a belief that she was making people sick, which he described as a "classic hallmark for delusions." 11. The accused came to see Dr Ramjan on 9 September 2016. She told him that she needed a drug screen because she wished to get custody of her other children. She asked him if he believed in God, and she pursued that topic even though he said that he believed it was not relevant. He observed her to be getting up, pacing and sitting back down. When he asked her what was wrong, she said that she was being "tested by God." 12. She became agitated and walked towards the door. He wanted her to stay so that he could establish what the problem was. Normally she had the child with her when she attended for consultations, but on this occasion she did not. When he asked her where the child was, she did not answer. He told her that she was acting strangely and that she probably needed a visit to hospital, and asked her to wait. However, she left. 13. Dr Ramjan called the Community Mental Health Service, expressing "serious concerns" about the accused. He said that he believed she was psychotic and at risk of harm to herself, which might cause her to neglect her child, and that she needed urgent assessment. He described the woman he spoke to as "very dismissive and condescending." She said that they would do the best they could but that, if he thought the police needed to be called, it was up to him. Immediately after the call he faxed a referral letter to the Community Mental Health Team. He received a confirmation that the fax had been received, but whether any action was sought to be taken as a result of it does not emerge in the evidence. 14. Also in evidence is a large volume of medical records from various services relating to the accused's treatment for mental health issues since the age of 15. For present purposes it can be summarised very briefly. She was treated for depressive symptoms, self-harm ideation and deliberate self-harm (cuts to the wrists). From the age of 16 she was found to suffer a delusion that she had some kind of bowel problem which emitted a bad smell and made people sick. Physical examination detected no such condition. This was the beginning of a pattern of delusional disorder over the ensuing years up to 2016, requiring treatment by psychiatrists, general practitioners and other mental health professionals. The Defence 1. As I have said, the only issue in this trial is whether the accused has made out the defence of mental illness, that is, that she was mentally ill so as not to be responsible, according to law, for her action in drowning the child: s 38(1) of the Mental Health (Forensic Provisions) Act 1990. To establish the defence, she bears the burden of meeting the test set in the nineteenth century by the well-known McNaghten Rules: that, because of her mental illness, she did not know the nature and quantity of her act or, if she did, she did not know that what she was doing was wrong. 2. It is upon the second of those limbs that counsel for the accused, Ms Manuell SC, relies. What must be shown was never better expressed than by Sir Owen Dixon in his summing up to the jury in The King v Porter, reported in (1933) 55 CLR 182. Speaking of the accused in that case, his Honour said (at 189-190): The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged. 1. It would seem that the accused knew, certainly by the Sunday, that what she had done was against the law. So much is apparent from her providing false information at the hospital about her personal particulars and the whereabouts of the child, and conceding to the police that she had provided false personal particulars because she knew that she could end up in gaol because of what she had done. However, as the passage quoted above makes clear, that is not the test. The focus is upon her capacity at the time she drowned her child to reason that what she was doing was morally wrong, that is, contrary to community standards of behaviour. 2. The defence is supported by the reports of two seasoned forensic psychiatrists: Dr Martin, engaged on behalf of the accused, and Professor David Greenberg, engaged on behalf of the Crown. Both experts had access to the evidentiary material, including the medical records of the accused's treatment in the past, and both interviewed her in custody. To each of them she gave an account of the fatal incident, and the period immediately preceding it, which was broadly consistent with what she had told the police. 3. Both psychiatrists diagnosed the accused as suffering from schizophrenia or schizoaffective disorder. Their reports are detailed and thorough, but it is sufficient to refer to their conclusions. Those conclusions are founded upon the evidence which I have summarised, evidence which is not in dispute and which I accept. 4. Dr Martin's conclusion is as follows: In my opinion, all the available information strongly suggests that the alleged murder of her child occurred in direct association with, and as a consequence of, her psychotic mental state. Her account to the police in the time just following the events was that she had acted on the basis of delusional beliefs around spiritual possession. She described a situation of not eating and not sleeping in the days prior to the alleged murder and then suddenly coming to the delusional conclusion that her child was possessed and that she had to kill her. In my opinion, [the accused] has the defence of mental illness available to her. She fulfils McNaughton's (sic) criteria. I think it is likely that it will be found in court that while she knew the quality of her actions and appreciated the legal wrongfulness, that she had an extremely distorted view of the moral wrongfulness as a consequence of her overwhelming and pre-occupying delusional beliefs. A person who is delusional and thought disordered would generally be expected to have poor insight and to have diminished capacity for controlling their actions, and I am confident that she would have had impaired capacity to behave reasonably or rationally as a result of being in a psychotic mental state. 1. Dr Greenberg's conclusion, adopting the terminology of the McNaghten Rules, is as follows: Based on my psychiatric assessment of the accused and the available documentation and provided material, I'm of the opinion that at the time of the alleged offence, [the accused] was suffering from a disease of the mind, namely an acute relapse of her Schizophrenic Disorder symptoms. I'm of the opinion that the accused was labouring under defect of reason caused by a disease of the mind, namely her grandiosed, paranoid, referential and autochronious delusions (a delusion which comes out of the blue) and her reported grossly disorganised behaviour at the time. Professor Greenberg expressed the opinion that the accused likely did know the nature and quality of her act and that it was legally wrong. He continued: However, I'm of the opinion that [the accused] did not know that the act was morally wrong at the time of the alleged offence. She was labouring under a defect of reason caused by her relapse of acute symptoms of Schizophrenia Disorder. She had various overt delusions. She acted on these delusions without insight and grossly impaired judgment. When a person acts on their paranoid delusions they are schedulable or certifiable under the NSW Mental Health Act. I'm of the opinion that she was unable to reason with a moderate degree of sense and composure that what she was doing was wrong by ordinary standards of reasonable people. I am therefore of the opinion that she likely has defence of mental illness available to her at this time. Findings and orders 1. The elements of the crime of murder in the present case are that the accused immersed the child in the bath water, causing her death, intending to kill her. It is not in dispute that she caused the child's death by drowning and, in any event, the evidence satisfies me beyond reasonable doubt that she did so. In light of the decision of the High Court in Hawkins v The Queen (1994) 179 CLR 500, it is at this point that the defence of mental illness should be considered and, if it is made out, there is no need to determine the issue of intent. The approach in Hawkins was adopted by the Court of Criminal Appeal in R v Minani (2005) 154 A Crim R 349, [2005] NSWCCA 226: see the Judgment of Hunt AJA, with whom Spigelmen CJ and Howie J agreed, at [32-33] (356-357). It had previously been understood that it was necessary to determine whether the elements of murder, including the intent, had been established before determining the defence of mental illness: R v S [1979] 2 NSWLR 1. 2. On either view, I am satisfied on the balance of probabilities that the defence has been made out. If the matter were approached on the understanding of the law prior to the High Court's decision in Hawkins, I am satisfied beyond reasonable doubt that the accused intended to kill the child. So much is apparent from the act of drowning itself. It also emerges from the accused's account of her reasons for doing so, confused as they were. It is sufficient to refer to her statements, set out at [8] above, that she drowned the child "to save her and I believe now she's in heaven", and that, having put the child's face under the water, she "just left her until her soul left her... ." Clearly, however, that intent was itself the product of a mind disordered by mental illness. 3. Accordingly, adopting the language of s 38(1) of the Mental Health (Forensic Provisions) Act, I am satisfied that at the time the accused drowned her child she was mentally ill, so as to be not responsible, according to law, for her action. I find her not guilty by reason of mental illness. 4. In addressing the court, Ms Manuell noted that, having been treated for her condition by medication while in custody, the accused now has insight into the killing of the child and is deeply remorseful. This I accept. In his report, Dr Greenberg noted that she "is upset and cannot believe that she killed her child." She told him that it was "like a bad dream and she didn't mean to do it... she was unwell at the time and loved her daughter." 5. I express my deepest sympathy to all those affected by this tragic event. Of course, the accused will remain in custody and will be subject to periodic review by the Mental Health Review Tribunal. She will be released only after a lengthy and staged regime of treatment, and then only if the Tribunal is satisfied that it is safe to do so. 6. Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act, I order that the accused be detained in a correctional facility, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law. ********** Amendments 12 December 2017 - amended formatting 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: 12 December 2017