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Supreme Court of the ACT Decisions |
Last Updated: 3 September 2004
CATCHWORDS
CRIMINAL LAW - trial by judge alone - murder - partial defence of diminished responsibility - nature of the requirements of s 14 of the Crimes Act 1900 as to abnormality of mind and substantial impairment of mental responsibility.
Evidence Act 1995 (Cth)
R v Weissensteiner [1993] HCA 65; (1993) 178 CLR 217
R v Byrne [1960] 2 QB 396 at 403
Purdy (1982) 7 A Crim R 122
R v Gieselmann (unreported, NSW Court of Criminal Appeal) 12 November 1996
No. SCC 49 of 1998
Coram: Crispin J
Supreme Court of the ACT
Date: 23 April 1999
IN THE SUPREME COURT OF THE )
) No. SCC 49 of 1998
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
ANU SINGH
Judge Making Order: Crispin J
Where Made: Canberra
Date of Order: 23 April 1999
THE COURT FINDS THAT:
1. The accused is not guilty of the offence charged that on or about the 26th day of October 1997 at Canberra in the Australian Capital Territory she did murder Giuseppe Joe Cinque but is guilty of the manslaughter of the said Giuseppe Joe Cinque at the time and place aforesaid.
2. The accused is not guilty of the offence charged that between the 23rd day of October 1997 and the 25th day of October 1997 at Canberra aforesaid she attempted to murder Giuseppe Joe Cinque.
3. The accused is not guilty of the offence charged that between the 23rd day of October 1997 and the 25th day of October 1997 at Canberra aforesaid she did intentionally and unlawfully attempt to administer to another person, namely Giuseppe Joe Cinque a stupifying drug, to wit, heroin, likely to endanger human life.
1. The accused was arraigned on the following charges:
(a) that on or about 26 October 1997 at Canberra in the Australian Capital Territory she murdered Giuseppe Joe Cinque; and further
(b) that between 23 October 1997 and 26 October 1997 at Canberra she attempted to murder Giuseppe Joe Cinque; and in the alternative
(c) that between 23 October 1997 and 26 October 1997 at Canberra she intentionally and unlawfully attempted to administer to Giuseppe Joe Cinque a stupifying drug, to wit heroin, likely to endanger human life.
2. Upon her arraignment she pleaded not guilty to each charge.
3. The indictment was subsequently amended by changing the second date in each of the second and third counts from 26 October 1997 to 25 October 1997.
4. Since the accused elected to be tried by judge alone I am bound by the requirements of s 68C of the Supreme Court Act 1933. That section is in the following terms:
"(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.(2) The judgment in criminal proceedings tried by a Judge alone shall include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) In criminal proceedings tried by a Judge alone, if a law of the Territory would otherwise require a warning to be given to a jury in such proceedings, the Judge shall take the warning into account in considering his or her verdict."
5. Accordingly, it is appropriate to begin with a brief explanation of the nature of each offence charged and the acts which the Crown allege constitute each such offence.
6. The offence of murder is defined by subs 12(1) of the Crimes Act 1900 in its application to the Australian Capital Territory which is in the following terms:
"A person commits murder if he or she causes the death of another person:(a) intending to cause the death of any person; or
(b) with reckless indifference to the probability of causing the death of any person."
7. There is no separately defined offence of attempted murder and the second count in the indictment is dependent upon s 347 of the Crimes Act which provides that a person who attempts to commit an offence under a law of the Territory is guilty of an offence punishable, on conviction, as if the attempted offence had been committed.
8. The offence charged in the third count on the indictment arises under s 27 of the Crimes Act which provides, inter alia, that it is an offence to administer to another person any stupifying or overpowering drug or poison or any other injurious substance likely to endanger human life or cause a person grievous bodily harm.
9. The burden of proving each of the elements of each of the offences charged lies upon the Crown and the standard of proof required is proof beyond reasonable doubt.
10. Essentially, the Crown alleges that late on Friday, 24 October 1997 or in the early hours of the following morning the accused having already drugged the late Mr Cinque by means of Rohypnol tablets then injected him with heroin. On this occasion Mr Cinque survived the administration of this drug but the Crown alleges that the accused had nonetheless administered it with the intention of causing his death. The Crown relies upon these allegations in support of the second count on the indictment.
11. In the alternative, the Crown submits that even if I were not satisfied to the requisite standard that the accused had intended to cause the death of Mr Cinque, I would be satisfied that she had intentionally and unlawfully administered heroin to him and that the heroin so administered was a stupifying drug likely to endanger human life. The Crown relies upon those allegations in support of the third count on the indictment.
12. The Crown also alleges that in the early hours of 26 October 1997 the accused, having again drugged Mr Cinque with Rohypnol, injected him with further quantities of heroin with the intention of causing his death. It is also alleged that as a result of this act Mr Cinque died. The Crown rely on these allegations in support of the first count on the indictment.
13. Mr Pappas, who appeared for the accused, not only contended that the evidence was insufficient to prove all of the elements of any of the offences but foreshadowed a defence of diminished responsibility.
14. The accused had been arraigned on substantially the same charges with a co-accused, Madhavi Rao, in October 1998. However, when that trial had proceeded for four weeks it became apparent that evidence which was potentially important in the case against Ms Rao was not admissible against the accused and might cause unfair prejudice if the trial continued. Accordingly, I was obliged to discharge the jury and direct that Ms Rao and the accused be tried separately.
15. It was agreed between counsel that significant time and expense might be saved if a substantial portion of the evidence adduced at the earlier trial were to be admitted in the present trial. For that purpose, the accused, upon the advice of her counsel, consented under s 190 of the Evidence Act 1995 (Cth) to dispense with the requirement in subs 65(1) of that Act which limits the application of the section to circumstances where those who have made previous representations are not available to give evidence about the facts. The bulk of the transcript was then tendered by consent and marked as an exhibit. Since I had been the presiding judge at the earlier trial and had had the opportunity of observing each of the witnesses give evidence it was agreed that the demeanour of the relevant witnesses should also be treated as evidence in the present trial.
Background facts
16. To obtain any understanding of what might have led the accused to form the criminal intent to commit any of the offences alleged by the Crown or the psychological factors relied upon in relation to the defence of diminished responsibility it is necessary to consider the accused's background and, in particular, her behaviour during the months leading up to late October 1997.
17. The accused was born on 3 September 1972 and accordingly was 25 years of age when the events of October 1997 unfolded. She was born in India but her parents who were both medical practitioners migrated to Australia in 1973. Her father Dr Singh, gave evidence that as a very young child she had a habit of constantly clinging to her mother and it was necessary to permit her to sleep in her parents' bedroom until she was four or five years of age. Despite this he described her as an obedient, "happy go lucky" child who used to play a lot of sports and was a good student.
18. She matured early and was fully developed by the age of 13. Dr Singh said that from about that time she appeared to become more interested in going out to see boys and study became a secondary consideration. He also became concerned that she wanted to wear mini skirts. There were some discussions about these matters and he sought to encourage her to be more conservative, to stay home and to study. He was not entirely successful and she apparently engaged in some rebellious and promiscuous behaviour during the teenage years. Despite her father's misgivings, however, she continued to do very well at school. She was dux of Year 10 in 1988 and completed her HSC in 1990, obtaining a TER of 94.10. School reports issued at that time contain very positive comments about her ability and behaviour.
19. She gained admission to study for a double degree in Economics/Law at the Australian National University in 1991. However she apparently did not cope well during her first year at university. She made constant phone calls to her parents in Sydney, sometimes ringing five or six times a day, and continually came home on weekends. In the latter part of the year she was involved in a motor vehicle accident and was taken to Goulburn Hospital though she apparently suffered no serious injuries. Her father told her that he thought that she was not studying well and was homesick. He suggested that she should return home. She agreed and deferred her studies until the following year.
20. She returned to the Australian National University in 1992 and almost immediately formed a relationship with a young man named Simon Walsh. This relationship was obviously very important to her. Thereafter her studies progressed very well and she completed her Bachelor of Economics degree in 1994.
21. In 1995 the relationship with Mr Walsh deteriorated. She had what might be described as a brief affair with Mr Cinque and when Mr Walsh found out about it this caused further problems between them. Mr Walsh subsequently terminated the relationship and moved out of their shared accommodation. Dr Diamond, a psychiatrist called on behalf of the Crown, expressed the view that this appeared to have been a very significant event in her life. She had been particularly hurt by a comment made by Mr Walsh to the effect that she was "intellectually inferior".
22. Following the breakdown of this relationship her academic performance deteriorated. She resorted to drugs of various kinds and became preoccupied with concerns about her appearance and body.
23. During the periods when she stayed with her parents her father observed that she was sad, teary and unable to sleep. By December he had become concerned at the amount of weight that she had lost. She showed him hanging skin and referred to it as fat. He observed that there was no subcutaneous fat in the area indicated and told her that she had lost a lot of weight and that what she had indicated was skin. At about that time he observed that she departed from her earlier vegetarianism and began to live on a diet of Coke Cola and Tim Tams. He told her that he thought she had an eating disorder, was depressed and needed treatment. She maintained that she was fat and wanted liposuction. There were recurrent discussions about this subject and Dr Singh observed that his daughter was desperate to proceed. Eventually he reluctantly gave her money but she decided not to proceed. By that time Dr Singh thought that she weighed only about 40 kilograms.
24. It is clear that by early 1996 she was frequently depressed and constantly concerned about her body. She remained very thin.
25. Later that year she formed a more substantial relationship with Mr Cinque. They appeared to be a happy and affectionate couple. Unfortunately, even as the relationship progressed the accused began to complain of an increasing range of symptoms. She continued to be somewhat withdrawn and would not go to family functions. Towards the end of 1996 she began complaining of aching legs, hot flushes, pains in the body and feeling generally unwell.
26. In January or February 1997 she complained that she could not feel her head. She said that she had a different head on a different body. She also said that she had things crawling under her skin. Her father told her that she had developed a mental illness and that she must see a psychologist or a psychiatrist. She retorted that there was nothing wrong with her mind; the problem was with her body.
27. At some time in early in 1997 she complained of chronic fatigue syndrome.
28. On another occasion in early 1997 Dr Singh had a further conversation with his daughter in the early hours of the morning about the fact that she was always pacing backwards and forwards and not sleeping. The accused was crying and pinching and pulling her skin. She said "I think I have a different head. I have a different head on a different body. I am going mad". During the course of the same conversation she said "I'm feeling hot. Something is crawling under me". Dr Singh said that during this period she sometimes told her mother that she was going mad. Later that day Dr Singh took her to see Dr Gilhotra, a psychiatrist and he in turn referred her to another psychiatrist, Dr Schultz.
29. Between January and October 1997 she remained thin and continued to complain of these symptoms. There were times when she was happy for perhaps two or three hours but she continued to experience sad moods and become teary. She was obviously convinced that she was suffering from a grave physical illness and it appears that as time went by she became increasingly desperate. She saw a large number of medical practitioners including a number of neurologists but continually rejected the view that there was nothing wrong with her physically and that the problem was psychological.
30. Her attendance at university became infrequent and when her friends did see her she often appeared dishevelled and poorly dressed. From time to time she would lock herself in her room for periods of up to two weeks. As time went by she became increasingly withdrawn. Mr Mancini, a fellow law student, said that he believed she had attended only two lectures during 1997. She complained that there was something wrong with her metabolism and that her muscles were being eaten away. She spoke frequently of suicide. She became increasingly anxious about her health.
31. In May 1997 she told Mr Mancini that she thought she had AIDS. She said that it was unfair that she had it and that Joe probably wouldn't get it. She wanted to put blood on his toothbrush so that he would also be infected. When AIDS was excluded she said that she thought her body had been damaged by taking a metabolism altering drug, Oroxine. She also mentioned the possibility of multiple sclerosis or peripheral neuropathies in her legs. She had clearly come to believe that she had a degenerative condition which would lead to incapacity and ultimately death. She thought that that condition had been caused by the ingestion of Ipecac syrup which Mr Cinque had obtained for her. By late 1997 she was having about ten showers a day.
32. On 16 May her mother became so worried about her that she rang the Mental Health Crisis Team in Canberra with a view to having her seen by a psychiatrist. On some later occasion she said to her father, "Dad, look at my body, what is happening? My muscles are gone, I am fat everywhere, I don't think I am going to live. Life's not worth living like this".
33. In the same month she told her friend, Rachael Fortunaso, that if it hadn't been for Mr Cinque telling her about Ipecac she wouldn't have all the problems. She said that she hated him and was going to go on a rampage and kill him and Simon Walsh and all of the doctors. She said that she had studied law and knew of the loopholes. She also said that "I studied psychiatric text and it wouldn't be too hard to convince someone that you're insane".
34. In June she and Ms Rao were seen at the National Library where they had been photocopying pages of a book about suicide by the Hemlock Society.
35. In July or August she approached a law student, Mr Bowers-Taylor, and asked if he could obtain a gun for her. When he asked her why she wanted it she told him she wanted to kill herself because she had permanent neurological damage.
36. In August she approached another fellow law student, a witness who for present purposes shall be known as Mr T, and asked him to help her get a gun so that she could kill herself. She told him that she had considered a number of methods including poisoning and hanging but decided that shooting herself was the best option. In the same month she was introduced to a young woman named Bronwyn Cammack. Ms Cammack said that her first words were to the effect of "Can you get a gun"? Ms Cammack told her to ask one of the "Junkies" and pointed out a person walking past. The accused immediately approached him and asked him about obtaining a gun. She told Ms Cammack that she had had a reaction to the drug Ipecac and that it had caused an illness which would cause her to slowly degenerate. She said that it would eat away at her muscle and fat until she was incapacitated.
37. During the same month Dr Singh cleaned his daughter's car for her and noted that her clothes were in the boot with tags indicating that they were for sale for amounts of one dollar or two dollars per item. She explained that she didn't go out and she didn't need the clothes. She also began giving her CD's to her brothers and when asked why she was doing so explained that she didn't listen to them. Dr Singh said that by this time he and his wife were desperate and his wife made a further call to the Mental Health Crisis team in Canberra.
38. In late August the accused again contacted Mr T to ask him about overdosing on heroin. After some discussion she told him that she wanted to buy some. Later that month or early in September the accused and Ms Rao bought heroin from Mr T.
39. In September Mr Bowers-Taylor saw the accused with Ms Rao in a car parked in Bunda Street, Canberra. The accused told him that she was waiting to speak to someone about a gun. Sometime later she telephoned Mr Bowers-Taylor and told him that she bought half a gram of heroin from Mr T and had got him to mix it for her and show her how to inject it. During the same month she rang Ms Cammack and asked her if she could obtain heroin. She said that she wanted to buy quite a lot and asked how much it would cost. In late September she again contacted Mr Bowers-Taylor and told him that she and Ms Rao were trying to have a shot of heroin but could not find their veins. Mr Bowers-Taylor subsequently showed her how to inject herself with heroin.
40. In early October the accused contacted Mr T and bought two half weights of heroin from him for the sum of $500. Mr T took a small quantity of the heroin as a commission but loaded the balance into two syringes for her. When he asked her why she wanted so much heroin she replied "Someone's coming with me". He asked her whether she meant that someone was going to commit suicide with her and she said "Yes". When he asked her who that person was she told him that he did not need to know.
41. On 20 October 1997 there was a dinner party at the home shared by the accused and Mr Cinque at 79 Antill Street, Downer.
42. On 21 October 1997 the accused spoke to Ms Cammack about obtaining Rohypnol tablets for her. She indicated that she could obtain a prescription for them from a general practitioner who had previously prescribed them for her. The accused offered to give her some heroin if she would obtain the Rohypnol for her. On the following day the accused gave Ms Cammack some heroin and drove her to the doctor's surgery where she obtained the prescription. The accused subsequently asked her about the strength of Rohypnol tablets and how many could be taken either by themselves or with heroin. She told her that she had a tolerance for them but would not take more than two or three even without heroin but that one or two with heroin would be more than enough to make a person pass out. She gave the accused the prescription and her health care card.
43. On 23 October 1997 the accused made a telephone call to another law student, Mr Joe Wee Tan to invite him to a party at her home on the following night. She asked him whether he knew anyone who could obtain Rohypnol. He said "No". She then asked him whether he knew what Rohypnol did.
44. The dinner party duly proceeded on the evening of Friday, 24 October 1997. During the course of the evening Mr Mancini asked the accused why she appeared so bubbly and vivacious. She replied "I've taken Rohypnol and had a few drinks". She said she felt quite "smashed". It appears that at some stage which may have been as early as 2.00 am or as late as 3.30 am the other guests departed leaving only the accused, Ms Rao and Mr Cinque.
45. It was during the course of this evening or the early hours of the morning that followed that the Crown alleges that the accused committed the offence charged in the second count on the indictment or, alternatively, the offence charged in the third count in the indictment.
46. One of the people who had attended the party, a witness who for present purposes will be referred to as Ms J, had arranged to stay overnight in Ms Rao's house. She was woken at about 5.00 or 6.00 am when Ms Rao returned and there was a conversation between them. Ms J then went home but was obviously troubled by what she had been told. She made a telephone call to Ms Rao at 9.16 am and after a brief discussion with Ms Rao the accused came onto the line and Ms J confronted her about trying to kill both herself and Mr Cinque. Following this conversation Ms Rao and the accused drove to Mr Mancini's house. There were five phone calls to Ms J initiated at 10.04, 10.13, 10.15, 10.18 and 11.03 am respectively and a further phone call from Ms J to Mr Mancini at 11.12 am. The evidence concerning the nature of these conversations is described later in this judgment in the context of a discussion of the Crown case in relation to the second and third counts on the indictment.
47. During the late afternoon and evening the accused made numerous phone calls. She made a call to Ms Rao at 5.29 pm, calls to Mr Mancini at 5.40, 5.42 and 6.42 pm, a further call to Ms Rao at 6.53 pm, a call to Mr Bowers-Taylor at 6.57 pm during which she indicated she was looking for Ms Rao, a further call to Mr Mancini at 7.04 pm, further calls to Mr Bowers-Taylor at 7.04, 7.10 and 7.33 pm, during the last of which she told him that Ms Rao was "back now", and a further call to Mr Mancini at 8.03 pm. At 8.45 pm a neighbour, Ms McLoughlin saw the accused drive away from her house. However she could not have been away from the house for long because she made further calls to Ms Rao at 9.48 and 10.00 pm.
48. At 10.19 pm there was a further call from the accused to Mr Mancini at least part of which was recorded by Mr Mancini's answering machine. The accused told Mr Mancini that she was most concerned about Mr Cinque and wanted to know how strong were "those sleeping tables." She said that Mr Cinque had been in bed all day and got up only at 6.00 pm. She said that he was "sitting there going `don't worry, don't worry, don't worry'". Mr Mancini said, "Well don't worry then." The accused said that she was worried and asked, "What if there is something wrong with him?" Mr Mancini remarked "Well it's done now." At that point Mr Cinque whose voice could be heard in the background said. "My mind's okay". Mr Mancini again told the accused not to worry. She replied, "I certainly am. What have I done". Mr Mancini said, "Nothing, it's not like there's going to be any long term damage". Following this comment the accused put Mr Cinque onto the line. Mr Mancini asked him how he was and Mr Cinque said "Hey, mate my mind is 100 per cent functional". Mr Mancini said, "Yeah", and Mr Cinque continued, "My body just wants to sleep like crazy that's all". Mr Mancini told him not to worry, that he just needed to get some sleep and that he would be alright. Mr Cinque then said "Anu's worried for nothing" and made some further comment which was not clearly recorded. Mr Mancini then said "She's freaking out" and Mr Cinque replied "It's really just mellow, it's great". At that point the sound of a woman laughing can be heard in the background. Mr Cinque continued "Except when I try to walk, otherwise it's 100 per cent". He added, "She's worried for nothing . . .".
49. Between 11.18 pm and shortly after midnight the accused made five calls to Mr Bowers-Taylor. During the course of these calls she told Mr Bowers-Taylor that she was feeling strange and that she thought Ms Rao might have put something in her drink. She said that Ms Rao had been upset when she accused her of spiking her drink and had left upset. One of the conversations was terminated quickly after she said "I've got to go, that's Joe".
50. At 12.17 am on 26 October 1997 she made a further call to Mr Mancini. Unfortunately, Mr Mancini was unable to recall the conversation.
51. Daylight saving began at 2.00 am and at a time which might have been either 6.30 am or 7.30 am Ms McLoughlin heard attempts being made to start Ms Singh's car. It was eventually started but she could not say whether it had been driven away.
52. At 9.00 am the accused went to Mr T's home to obtain more heroin. He showed her a package of heroin and she asked him to mix up the contents and put it in a syringe for her. She allowed him to have a small quantity of the heroin and then he put the balance into a syringe and gave it to her. Whilst he was preparing the heroin for her she was pacing up and down. She said "Today's the day". He told her to calm down and not be silly.
53. The accused made seven calls to Ms Rao between 9.13 and 9.40 am. Mr Flexmore, who was living in the same house as Ms Rao said that he heard Ms Rao answer the telephone on a number of occasions and at one stage heard her use the accused's name. He also heard her tell the caller to leave her alone. However, after the last call he heard her say "Okay, come over . . .".
54. At about 9.30 am Mr Manley arrived at Mr T's house and met the accused. Mr T said that he was trying to organise a "half weight" deal of heroin for the accused and she gave him money. Mr T left the flat obviously for the purpose of obtaining heroin and after a short time Mr Manley suggested that she also might leave and come back later. She returned about 10 or 15 minutes later. Mr T had not returned and she had a further conversation with Mr Manley during the course of which she said, "I've done something I shouldn't have". Mr Manley did not reply. He said in his evidence that, in all, she left and returned three times.
55. At 9.38 am Ms Rao's Mastercard was used at Westpac Dickson to withdraw $250. At 10.30 am Ms McLauglin saw the accused drive away from her home.
56. At sometime between 10.30 am and noon another student, Ms Dunstan, saw the accused's car parked in a dangerous position some distance out from the kerb near Ms Rao's house. She saw the accused walking towards her car and noticed that she was walking slowly and was apparently distressed. She said that her expression was almost blank but that she looked distraught.
57. At 11.09 am the accused made a call to Ms Rao and at 11.17 made a further call to Mr T. The phone was answered by Mr Manley who told her that Mr T was out. At 11.54 am she made a call to Mr Bowers-Taylor though there is no evidence as to the nature of the conversation and Mr Bowers-Taylor may not have been home.
58. Only one minute later, at 11.55 am, she made a telephone call to Ms Cammack. Ms Cammack said that she was quite frantic. She asked her what to do about an overdose. Ms Cammack told her to phone the paramedics immediately. The accused said words to the effect of, "I can't - he doesn't know, he'll be furious". She asked what would happen if the paramedics came. Ms Cammack told her they would give him Narcan and that he would wake up and be fine. She said that the accused did not mention any name but she assumed that she had been speaking about her boyfriend. She said the accused spoke very quickly, her voice was raised and she sounded very upset. Ms Cammack kept telling her to contact the paramedics and the accused kept saying "No, no, I can't I can't". Ms Cammack asked about his condition and the accused told her that his lips were "a tiny bit blue" and he was still taking a breath about every 10 seconds. Ms Cammack told her how to give mouth to mouth resuscitation and the accused left the phone. After about 15 or 20 seconds she came back onto the line and asked "Now what?" Ms Cammack told her that she had to keep doing it until he came around. She again put down the phone but came back onto the line only a few seconds later and said, "It's too late. He's gone, anyway". Ms Cammack said in her evidence that at this stage the accused was "really screaming". She told her that there was "All this black stuff" coming out of his nose and mouth and that it was too late. Ms Cammack said that she had screamed back at her, "No, if you ring the paramedics now he'll be okay, just keep doing it till the paramedics come". She said that by this time she was angry and called the accused a "selfish bitch". She told her that she had no right to take someone's life away. The accused told her that she had to come over and that she was the only one that knew what to do. Ms Cammack said that she could not come over. The accused offered to pick her up but Ms Cammack said "He'll be dead in 2 minutes, you don't have 20 minutes to pick me up". The accused insisted that she come over and Ms Cammack finally agreed and asked for her address. At that point the accused said "No, you're not going to come over you are just going to call the paramedics." She refused to give her the address. Ms Cammack insisted that she call the ambulance and the accused hung up the telephone.
59. About 20 seconds later the accused rang her again. The records indicate that that call was made at 12.09 pm. She told Ms Cammack that she just couldn't do it. Ms Cammack said "Look, Anu if you call the paramedics you will have an angry boyfriend when he wakes up. If you don't you will have a murder charge on your hands". The accused replied "Shit, you're right".
60. At 12.10 pm the accused rang the 000 emergency number and asked for an ambulance. She said that she had a person who had potentially overdosed on heroin and was vomiting blood. A tape recording of that telephone call was admitted into evidence. It is clear from the accused's voice that she was significantly distressed. She initially gave an incorrect address and said that her name was Olivia. However she seems to have become increasingly distraught. She asked what she should do and whether he would die. She then gave them the correct address and urged them to get there quickly. She rang back at 12.14 am. Her voice during this conversation again reveals significant distress. The ambulance officer gave her instructions about mouth to mouth resuscitation and it appears that she commenced to follow those instructions. That call was terminated only after the ambulance had arrived.
61. The ambulance arrived at 12.18 pm. Mr Cottee, a paramedic, saw the accused who looked very anxious and was waving them into the house frantically. She told him that Mr Cinque had had some heroin. He asked her how much he had had and she said "150". She agreed with his suggestion that this meant three lots. He asked her if he had had anything else and she told him that he had had some Rohypnol. Mr Cottee attempted to resuscitate Mr Cinque and on his instructions the accused performed external cardiac compressions. She asked him if he was going to use Narcan. When it became apparent that he could not be revived the accused became hysterical. She told him, "It wasn't supposed to happen this way. We were supposed to go together". He also remembered her saying "Can't you do anything"? "There has to be something you can do", and, "This is not happening. I don't believe this". She attempted to kiss Mr Cinque's body, pulled at his face, sat on top of him and attempted to embrace him. Mr Cottee called the police. He later recalled the accused mentioning that the drugs had been consumed about 3.00 am. He confirmed that the accused had been anxious to assist in the attempts to resuscitate Mr Cinque and that there were signs that she had already attempted mouth to mouth resuscitation prior to his arrival.
62. The other paramedic, Mr Relf, made substantially similar observations. He also confirmed that when the police arrived it took three men to keep the accused out of the bedroom. She was behaving frantically, was flighty in her actions and forcefully trying to get back into the bedroom. He said that her voice was just a couple of tones under a scream.
63. A fire brigade officer, Mr Peter Davis was also called to the house. He saw the accused moving around between the bedroom, the hallway and the bathroom. She said "Please tell me he's going to be okay". He was present when resuscitation attempts ceased and heard her say, "Oh, no, he can't be", or words to that effect. He observed that she was agitated. Another fire fighter, Ms Georgina Kikos also attended. She asked the accused if she was alright but said that the accused just stared blankly and didn't answer. She was present when the accused was told that Mr Cinque was dead and heard her say "You can't stop, you have to bring him back". She said that she paced around and then knelt down and caressed his body and kept saying words to the effect "This is not happening, you have to bring him back". The records indicate that the fire crew arrived at 12.31 pm. The accused apparently made telephone calls to Ms Rao at 12.24, 1.33 and 1.39 pm and calls to Mr Mancini at 1.06, 1.11 and 1.53 pm.
64. When Sergeant Fitzpatrick, the first of the police officers to arrive at the scene went into the bedroom he saw the accused straddling the body of Mr Cinque. He said that her body was moving in a backwards and forwards motion and she was repeating words such as "No, no, don't leave me, Joe, Joe". He said that she would not leave Mr Cinque's body and it was eventually necessary for him to seek the assistance of two paramedics to physically lift her from the body and remove her from the room. During this time she continued to struggle and scream. He thought that she was hysterical.
65. The accused was later taken into custody. A videotape reveals that at about 6.00 pm when being charged the accused was obviously agitated but coherent. However, she appeared to have difficulty standing in the position indicated.
66. When Dr Singh saw his daughter at about 10.00 pm she was crying, agitated, incoherent, folding and pinching her arms and asking, "Where am I?".
The Crown case on the second and third counts on the indictment
67. As previously mentioned, both the second and third counts in the indictment are dependent upon allegations that the accused injected Mr Cinque with heroin late on Friday, 24 October 1997 or in the early hours of the following morning. That was, of course, some time before the act relied upon in relation to the first count and for the sake of clarity I think it is appropriate to deal with the allegations in chronological order.
68. As the learned Crown prosecutor frankly conceded, the Crown case in relation to the these counts is substantially dependent upon the evidence of Ms J and Mr Mancini.
69. Ms J attended the dinner party at the home of the accused and Mr Cinque on 24 October 1997. She saw the accused and Mr Cinque together and got the impression that they had a close and warm relationship. She left the dinner party shortly after midnight and in accordance with the previous arrangement spent the night in Ms Rao's house in Turner. She was awoken at about 5 or 6 am when Ms Rao came in and there was a conversation between them which extended for about an hour or more. Later that morning she contacted Ms Rao by telephone and a further conversation then ensued.
70. The accused then came onto the line. Ms J said that the accused asked her what she was doing and she replied "Madhavi told me about you trying to kill yourself and trying to kill Joe and I am not comfortable with knowing about this. I need to do something about it. I want Len's phone number and if you don't give me Len's phone number I will call the police. I know someone who is in the police force and he will listen to me. This could be a serious situation for you. Give me Len's phone number". It is clear from her evidence that the "Len" to whom she referred was Mr Mancini. Ms Singh apparently replied "What do you know? You don't know anything. What are you going to tell the police?" Ms J said "I am going to tell them that you have heroin and that you tried to kill Joe with it and that you thought about killing yourself". She added "I'm going to call them but I'm going to call the Mental Health Crisis Centre or I'm going to call Len" (sic). She also said that she would have said something like "You choose. Give me Len's phone number". There was some further conversation about the utility of calling the Mental Health Crisis Centre and the possible implications of informing the accused's parents. The accused is then said to have asked "How will I know that I am going to be safe with you knowing this? I can't have this hanging over my head for the whole time". Ms J said that she would just tell Len about it and then not mention it to anyone ever again. She said that the accused said "I could never do this to - do anything to Joe anyway because I looked at him afterwards for two hours and I realised that he was the one that stuck by me and I loved him". She added "We're engaged to be married. You could ruin all of this for us". She then she gave Ms J Mr Mancini's telephone number.
71. Ms J said that Ms Singh was quite angry when the conversation began. She subsequently started crying and telling her that she had no right to do this to her. She was upset and "Sort of bursting into tears". Ms J said that she was also upset.
72. During the course of this conversation the accused spoke about Mr Cinque and how difficult it was for her. She said that she didn't know what to do because she loved him but she blamed him for her medical problems. Ms J said that she told her that, "You don't punish someone by killing them, you get out of the relationship". The accused did not respond directly to that statement.
73. The assertions made by Ms J during the course of this conversation were apparently based upon her understanding of what she had been told by Ms Rao. If Ms Rao had given evidence at the trial it would have been necessary for me to have taken into account the warning customarily given to juries concerning the danger of convicting upon the uncorroborated evidence of accomplices. As it was, the evidence did not reach even that dubious level of reliability. The assertions were merely hearsay. In these circumstances it would be quite wrong to place any reliance upon those assertions save to the extent to which they might have been adopted by the accused.
74. The Crown submitted in essence that the manner in which the accused participated in this conversation involved implied admissions of the truth of the assertions put to her or at least revealed a consciousness of guilt. However, there does not appear to have been any occasion upon which the accused actually adopted any such assertion. Indeed, Ms J complained that the accused "Didn't engage in the topics that I had brought up".
75. Whilst the reference to looking at Mr Cinque "afterwards" for two hours might be seen as an implied admission the precise context in which the comment was made must be considered. Ms J said that when the accused asked her what she was going to tell the police, she told her that she would tell them that she had drugged Mr Cinque with Rohypnol. It was then that the accused said "No, I'd never do anything to him" and spoke of looking at him afterwards for two hours and realising that he was the one who had stuck by her and that she loved him. There is a potential conflict between the apparent denial involved in the word "No" and the apparent admission contained in the reference to looking at him "afterwards", but however this conflict might be resolved it is clear that the statement related to an allegation of giving Mr Cinque Rohypnol rather than heroin. It is equally clear that it involved no admission of any attempt to kill.
76. There was also evidence of a subsequent telephone conversation apparently initiated by the accused who, Ms J said, introduced herself and then apparently handed the phone to Mr Mancini. He introduced himself and Ms J spoke to him for some time. She said that she told him, "I wanted to tell you about what's been happening with Anu. Anu tried to kill herself and Joe last night, she was using heroin and Rohypnol". She said that as she was saying that Mr Mancini was saying "Yep, yep, okay, yep". The accused then came back onto the line and asked her whether she was satisfied and would leave the issue alone. Ms J said that she was a bit bewildered because Mr Mancini seemed to have taken it all so casually. She told the accused that, "He doesn't believe me, I can't leave this alone until Len believes me". The accused then said "You talk to him again." Mr Mancini then came back on to the line and there was a further conversation during which she asked him, "Do you believe that Anu has heroin in a syringe and that she tried to kill Joe last night with it and that she couldn't do it because he flinched or something like that". Mr Mancini had replied, "Yep, okay." However, she thought that he still sounded very casual. She asked him whether he believed her about the Rohypnol and he said "Yes". The accused then came back onto the phone and again asked whether she would leave the issue alone. Ms J said that she told her that he still didn't believe her and that she couldn't leave it alone.
77. The accused then asked "How about I tell him everything that you want me to say and he just - and you just listen? What do you want me to tell him?" Ms J said that she had replied "Well tell him that you tried to kill Joe, but you have heroin and that you have Rohypnol and that you tried to kill yourself". She then heard the accused say to Mr Mancini "Okay, Len, I've been really depressed for the last couple of months but I always . . ." Mr Mancini said, "Yes", and the accused continued, "I thought about killing myself and I thought about taking other people with me, but . . ." At that point Mr Mancini apparently interrupted to ask, "What's new?", before the accused continued, "I got some heroin and I considered it but I didn't do it, I never do". Ms J said that she thought Mr Mancini had then said "No, you don't". She said that the accused came back onto the phone after this conversation and asked "There, are you happy now, are you going to leave it alone now"? Ms J said, "Look, no". The accused offered to meet her somewhere and talk about it the next day but Ms J said that she was not comfortable with that either. She said that she would think about it and call her again that night. She also said that she wanted to be satisfied that nothing was going to happen to Joe and added "If anything does happen to Joe your friends are now implicated". She said that at that point the accused "kind of screamed" and said "Slavica, how can you say that I'd do something like that"?
78. Shortly after this conversation Ms J rang back to say that she didn't want anything more to do with the matter and that she was definitely going to leave it alone and not tell anyone.
79. I have no doubt that Ms J gave her evidence honestly and did her best to recall the terms of the conversation. Nonetheless, I have considerable doubts as to whether the conversation occurred in the precise terms described. Ms J had obviously been deeply disturbed by the things that Ms Rao had told her and had obviously wished to contact Mr Mancini in order to allay her concerns. However the conversation had occurred some 18 months prior to her evidence and some of the statements which she made to investigating police during the intervening period were not entirely consistent with her evidence. She did not accept the suggestion put to her in cross-examination that Mr Cinque had been in some sort of danger or even that she had had a suspicion that he might have been in danger. She maintained that she did not know. Indeed, she said that it was that very state of uncertainty which had led her to act as she did. Nonetheless, she had never asked the accused whether she had tried to hurt or kill Mr Cinque. She said that "I had no reason to". She also agreed that the accused never once told her that she took heroin and put it in the syringe with the intention of killing him. She did claim that the accused had later made such an admission to Mr Mancini but when pressed about this issue agreed that the accused had not "exactly" spoken about trying to kill Mr Cinque. Indeed, she accepted that she did not remember her saying more than "I have been depressed and I have thought about suicide and I have thought about taking others with me". She agreed that when she told the accused that if she harmed Mr Cinque she would be implicating her friends the accused had expressed considerable surprise that she would make such a suggestion. It was also significant, in my view, that when interviewed by the police only five days after the conversation in question, she had not been certain of whether she had mentioned the attempt to inject heroin to Mr Mancini. The most she could say was that she believed she had mentioned heroin to him. Furthermore, it would have been surprising if having demanded that the accused speak to Mr Mancini in the terms which I have recounted Ms J had not complained to her about her failure to tell him that she had tried to kill Mr Cinque. Ms J was unable to offer any explanation for her failure to have made such a complaint.
80. Mr Mancini gave a somewhat different account of his conversation with Ms J. He said that her complaint had been expressed in the assertion that, ". . . Joe was given sleeping tablets last night, he was drugged. I think he's in danger", or words to that effect. He had then asked the accused whether she had given Mr Cinque drugs and she told him that she had in fact given him three sleeping tablets in his drink. He asked her why she had done that and she replied "I wanted him to be asleep so that I could kill myself without him interrupting or stopping me, preventing me".
81. He said he had a further conversation with Ms J in which he said "Look, Slavica, I don't think Joe's the one in danger here, I think it was Anu who wanted to kill herself. She obviously couldn't do it. Joe wouldn't be in danger. She's not going to do anything". He said that Ms J had replied "Look, I don't know, Len. I'm really worried for Joe". There was then some further conversation about her concern for Mr Cinque. Mr Mancini said that she had said either that she wanted to tell Joe or that she wanted him to tell Joe that he was in danger. Mr Mancini thought that she may have said "they have heroin" and that he might have responded by telling her that the accused took heroin and had it around the house. He said that the accused told him, "Look, you've got to tell her not to tell Joe. You've got to tell her that it was all a mistake" and "He's not in danger". He said that she made those comments constantly and repetitively.
82. He later heard the accused speak to Ms J when she took the telephone from him. She told Ms J that her life was in her hands and that she would ruin her life if she told Mr Cinque. However, she finally told Ms J that she would tell him.
83. I formed the impression that Mr Mancini was generally a reliable witness though he candidly conceded that he could not recall the precise terms of the conversation. Nonetheless, it is clear that he had no recollection of any allegation to the effect that the accused had injected Mr Cinque with heroin or that she had done so in order to kill him. As I have indicated, the matter which he said had been raised with him by Ms J was that the accused had given Mr Cinque some sleeping tablets and that she thought he was in danger. The only admission made by the accused was in relation to that allegation.
84. I am satisfied that Ms J was genuinely concerned by whatever Ms Rao told her and raised the matter with the accused because she feared that Mr Cinque might be in danger. She obviously felt that she had been placed in a very difficult situation. If she did nothing Mr Cinque might be harmed. If she went to the police when in fact he had never been in any real danger then a great deal of unnecessary embarrassment and distress might be caused. It was I think for this reason that she chose to contact Mr Mancini who had driven her home the night before and who was plainly a friend of the accused. She clearly anticipated that he would be in a position to make a more informed judgment about the extent of the risk and to deal with the matter appropriately. Nonetheless, she impressed me as a somewhat nervous and diffident person who would not have found it easy to broach the matter with Mr Mancini and may have failed to communicate the full measure of her concerns to him.
85. Whatever the explanation for the discrepancies in these accounts I am not satisfied beyond reasonable doubt that there was any admission by Ms Singh of either administering heroin to Mr Cinque without his consent on the previous night or of having done so with the intention of killing him.
86. It is true that there was a small bruise on Mr Cinque's arm apparently consistent with the mark of a recent injection. Furthermore, Professor Drummer said that he would not have thought that Rohypnol would have caused Mr Cinque to feel completely functional but very sleepy as he said in the telephone conversation recorded at 10.22 pm on 25 October 1997. He also said that heroin causes sleepiness but has little effect on cognitive functions and agreed that the administration of that drug was a possible explanation. This evidence together with the evidence of what occurred on 26 October 1997 is sufficient to raise a strong suspicion that the accused injected him with heroin on the night in question. However, suspicion is not an adequate substitute for proof and in my view the evidence is not sufficient to prove the relevant allegations to the requisite standard.
87. For these reasons I find the accused not guilty of the offences charged in the second and third counts on the indictment.
The Crown case in relation to the first count on the indictment
88. The accused on the advice of her counsel made a number of admissions pursuant to s 184 of the Evidence Act 1995. One of the facts so admitted was that on 26 October 1997 she administered heroin to Mr Cinque without his consent.
89. I accept the evidence of Professor Herdson that death was due to asphyxia from terminal inhalation of vomit whilst under the influence of respiratory depressants, heroin and flunitrazepan, which is the generic name for Rohypnol.
90. Mr Reedy, the Director of Scientific Services Drugs and Therapeutics in the Government Analytical Laboratory, gave evidence that the heroin in Mr Cinque's body had been injected somewhere between two and four hours prior to death. He said that nitrazepam and heroin were both central nervous system depressants and that they provided a toxic cocktail. He said that the literature was not clear about precisely how they worked and that there could be either a potentiation effect or an additive effect.
91. Professor Drummer, a forensic pharmacologist and toxicologist, gave evidence that the levels of free morphine and morphine in Mr Cinque's body were both relatively high and reflected either a high dose or an accumulation of heroin from previous doses. He said that vomiting was a fairly frequent occurrence particularly in people who were starting heroin use or using a higher dose than normal. The concentration of free morphine in Mr Cinque's body was 0.67 milligrams and that the concentration found in a typical case of a person who had died from heroin would be between 0.2 and 0.5 milligrams per litre although he said that there were many higher than that. The concentration of flunitrazepam in Mr Cinque's blood was 0.044 milligrams per litre and that that was a higher concentration than could reasonably have been expected from a single 2 milligram tablet of Rohypnol. He said that in most cases a single tablet would make a person feel very sleepy within half an hour to an hour and two or more tablets could make a person fall asleep unwillingly. If one assumed that the Rohypnol had been taken shortly before the heroin it was likely that two or perhaps three tablets had been taken. He said that such a dosage of Rohypnol taken in conjunction with the heroin would have increased the likelihood of toxicity developing and death occurring.
92. I am satisfied that death was caused by the injection of that drug acting in combination with the Rohypnol which he had previously consumed.
93. It was submitted on behalf of the Crown that there was ample evidence to establish that in injecting Mr Cinque with heroin the accused had intended to cause his death.
94. Ms Fortunaso gave evidence that the accused told her that she hated Mr Cinque and wanted to kill him because he had advised her to take the Ipecac syrup which she had come to see as the source of her illness.
95. There was evidence that the accused had researched various methods of suicide including the use of different poisons. In about August 1997 Ms Cammack told her that if she were going to commit suicide she wouldn't shoot herself she would overdose on heroin. Again, in about August 1997, the accused approached Mr T about a gun.
96. About two weeks later she rang Mr T and asked "How easy is it to overdose on heroin"? She also asked what happened physically and how long it took to die. When Mr T told her that she would not feel any pain and would be dead within a few minutes she asked "How much do you need to overdose"? Mr T discussed appropriate quantities with her. In short, there is evidence that she had not only discussed the use of heroin to cause death but had sought to ascertain the amount necessary for a lethal dose.
97. It is clear that the accused and Ms Rao began to experiment with heroin some weeks prior to Mr Cinque's death, buying a quantity from Mr T in early September 1997 and having him show them how to inject it.
98. At the beginning of October the accused bought two "half weights" or a full gram of heroin from Mr T for the sum of $500 and when he asked her why she needed so much she replied "Someone's coming with me". While she indicated in answer to a further question that she meant that someone was going to commit suicide with her it is significant that she had bought a large quantity of heroin for the express purpose of causing not only her own death but that of another person.
99. The accused's notebook, which was tendered in evidence, foreshadowed a "vendetta against Joe".
100. On 23 September 1997 the accused consulted a counsellor about her relationship with "her live-in boyfriend" whom she claimed had been violent to her on a number of occasions. It was submitted that this offered a further motive for murder. Whilst that possibility cannot be denied, I think it is unlikely to have been the motivation for what she did. Complaints of violence do not emerge from any of the other evidence concerning the events leading up to Mr Cinque's death. Furthermore, the letters seized from the accused's locker at the Belconnen Remand Centre contain no hint of such complaints. On the contrary, they speak of her love for Mr Cinque and reveal at least a belated recognition of the fact that he was the person who had stood by her and supported her through her difficulties. More significantly, the letters contain passages in which the accused seemed to have been railing at herself for what she had done and in this context she exclaimed "Just because I couldn't deal with a minor minor health problem". When this passage is considered, together with evidence of other threats such as the ones made to Ms Fortunaso, it seems to be much more likely that the accused was motivated by resentment borne of her belief that her life had been ruined by some grave degenerative illness brought about by the Ipecac syrup which Mr Cinque had suggested she take.
101. The Crown also relies upon Ms J's evidence concerning the terms of her conversation with the accused on the morning of 25 October 1997. As previously indicated, I do not accept that the accused made any admission during the course of this conversation to the effect that she had either injected Mr Cinque with heroin or had attempted to kill him. Furthermore, whilst Ms J gave evidence that she had heard the accused tell Mr Mancini that she had thought about killing herself and thought about taking other people with her, Mr Mancini said only that the accused had told him that she had given Mr Cinque Rohypnol tablets to put him to sleep so that he would be unable to prevent her from committing suicide. In view of this conflict in evidence I am unable to find the accused had said that she had thought about taking other people with her. Nonetheless, it is significant that she did admit having drugged him by putting three sleeping tablets in his drink on the previous evening.
102. On the morning of 26 October 1997 the accused told Mr Manley that she had done something she shouldn't have.
103. The Crown also relies on the evidence of the conversation which the accused had with Ms Cammack at about noon on 26 October 1997. That conversation is potentially significant for a number of reasons. The decision to call Ms Cammack rather than call an ambulance strongly suggested that she wished to ensure that there was no official scrutiny of what had occurred. That impression is confirmed by the terms of the conversation in which she repeatedly told Ms Cammack that she could not ring an ambulance and refused to give her address. Of course, as Mr Pappas pointed out this behaviour may be explicable on the basis of her mental state, her expectation that Mr Cinque would be revived and her desire to avoid him finding out that she had drugged him. However such a construction is not evident from the terms of the conversation. As previously mentioned, Ms Cammack called her "a selfish bitch" and told her that she didn't have any right to take someone's life away. She could not recall the accused saying anything in response to that. More importantly, during the course of a second telephone call Ms Cammack told her that if she did not call the paramedics she would have a murder charge on her hands, the accused replied "Shit, yes, you're right". Again, this comment could be attributable to the accused's mental state and the fear that if he died a more sinister motive might be attributed to her. Whilst conscious of this possibility I think that the terms of this conversation must be considered along with the other evidentiary matters relied upon by the Crown in relation to this issue.
104. The conversations with the ambulance officer who received her telephone calls at 12.10 and 12.14 pm raise similar issues. Again, the Crown submits that lies about her address and her name reveal a consciousness of guilt. No doubt they do, but it is again necessary to bear in mind the possibility that the guilt may have related to the administration of heroin to Mr Cinque without his consent even if she had not intended to kill him.
105. The Crown also relied upon the evidence of Dr Byrne, a clinical and forensic psychologist called on behalf of the accused, to the effect that she had formed a plan involving both suicide and homicide. It is clear that Dr Byrne's opinion was based not upon an admission to that effect by the accused but upon his own deduction from the circumstances revealed in the evidence with which he had been briefed. It may be of some significance that the accused, who is an intelligent person with some legal training, did not proffer any alternative explanation to Dr Byrne. However, he was seeing her for the purpose of preparing a medico-legal report that might be relied upon in support of a defence of diminished responsibility, and the need for such a defence would arise only in the event that a prima facie case was established in relation to each of the elements of the charge of murder, including the requisite intent. In these circumstances, it seems to me that little weight can be placed on this aspect of the Crown's contentions.
106. Professor Mullen, a forensic psychiatrist who was also called to give evidence on behalf of the accused, agreed in cross-examination that the accused had told him that she had injected Mr Cinque with heroin intending to kill both him and herself. He added, that "the context undoubtedly of the account given by Ms Singh was that the heroin was to be used first to kill Mr Cinque and then herself". Mr Pappas did not contend that Professor Mullen's evidence of this admission should not be accepted but he did maintain that the statement which the accused had made to him might be unreliable. He relied upon evidence from Dr Byrne, Dr Diamond and Professor Mullen himself concerning the accused's mental state and her grasp of reality in the time leading up the administration of the fatal dose of heroin. However, there was no evidence to suggest that the accused was continuing to suffer from any abnormality of mind or other psychological condition affecting her memory, perception or judgment when seen by Professor Mullen on 6 March 1999. Furthermore, he was not asked any questions with a view to providing some evidentiary basis for the contention that that her statement may have been unreliable.
107. The letters seized from the accused's locker at the Belconnen Remand Centre are also revealing. One includes the following passage:
" . . . I have decided to write down how this happened - to get it clear in my mind also. I will write down what was going through my mind at the time too -(1) I guess it all started in June 97. I went to the National Library with Madhavi - to look up info on suicide. At that stage - I was thinking of only me dying. We found this article - which said that couples swear if their partner dies, they won't be able to go on - but 2 or 3 years later they remarry. I thought then - if I die - Joe will just go on and find someone else. So I thought if I die he has to à 1st Act of Selfishness.
(2) The articles were about OD on sleeping tablets - too hard to take Joe with me that way - so started looking for a gun.
(3) At no stage was I thinking of the future at all. Was thinking only of DEATH all the time. Al I wanted to do was die. Didn't even consider getting married was option at all.
(4) It was too hard to get a gun - so looked into heroin. Needed sleeping tablets as well to take Joe with me à 2nd Act of Selfishness.
(5) When I thought I had AIDS I even put some blood of mine in his food so he would catch it too à 3rd Act of Selfishness. EVIL
(6) Spent heaps of time with Madhavi - getting the drugs and learning how to inject.
(7) Went to friends house to learn how to inject. Spent all day planning death. Didn't do anything else. Didn't I think at that time that these friends of mine were helping me to die? Didn't I stop and think then that Joe was helping me to live? No - because I thought I was going to die too. All these "friends" were helping me to die!
On the night of the incident I thought Madhavi had put Rohys in my drink. So I thought - "no one cares about me, they only care about Joe" - I thought she had tried to drug me to prevent me from killing Joe. I should have thought "no one cares about me only Joe does".
I felt compelled to do it - because I thought everyone was against me and only cared if Joe died or not.
Then I wasn't sure whether to call the ambulance - kept thinking - he will leave you. Because Madhavi said - if you can't call the ambulance he will leave you - and put you in an institution. I thought "No way". . . .
108. Another letter addressed to the accused's mother includes the following passage:
". . .Things could be so different now couldn't they? Happily married.You know it was almost like I was working against Joe rather than with him. Working with druggies who didn't care about me at all. Didn't I think these people didn't care if I lived or died? But Joe did. He cared. Oh mum - what a tragedy.
But even if I wanted to die? Why take Joe too? That's selfish and awful. My selfishness has ruined so many lives.
You don't fully appreciate what you have until it's gone that's for sure. So much I want him back. He's all I had - always there for me.
I wonder where he is now? Do you think he is in heaven? Will I be with him if I also die?
And what about his parents! How they must be suffering now - badly. They will never get over this. They have lost a son. Didn't I think of them?
. . . the most Wonderful man in the world. Loved me so much - Would have made a perfect husband and father. Ruined. Perfect life Ruined. Because of my own utter stupidity and selfishness.
You must start preparing for my death now. My life is over. I made the wrong choice when so many others were available at the time.
Worked with druggies rather than with Joe. Should have protected him and worked with him. Now so many lives are ruined.
I wish these druggies were dead and not Joe. Not Joe. Mum. Please not Joe.
I know can't turn back the time. My life is over."
109. It may be noted that there is no hint in any of these passages that Mr Cinque's death was the product of an accident. Nor is there in any of the other letters. On the contrary, the passages I have quoted express profound regret for deliberate choices and actions which at least in hindsight the accused obviously saw as selfish and wrongful.
110. These matters together raise a formidable case on the issue of intent.
111. The Crown also submitted that since the accused did not give evidence in her own defence I should draw the inference that nothing which she could have said would have assisted her case. I am not prepared to draw this inference. An accused person is entitled to maintain her silence at trial and her decision to do so should not be treated as involving any implied admission on her part. I accept the Crown's alternative submission that her failure to give evidence is relevant in that it enables an inference of guilt rationally arising from other evidence adduced at the trial to be drawn more readily; R v Weissensteiner [1993] HCA 65; (1993) 178 CLR 217.
112. Despite the strength of the Crown case on this issue Mr Pappas submitted that I could not be satisfied that the accused administered the heroin to Mr Cinque with the intention of causing his death. He submitted that there was an innocent hypothesis reasonably open on the evidence; namely, that she had formed a plan to drug Mr Cinque so that he would be unconscious whilst she committed suicide and that she had injected him with heroin in order to achieve that end. Having done so she left the house to buy more heroin from Mr T and returned sometime later. When she found Mr Cinque in obvious respiratory difficulties she contacted Ms Cammack in an endeavour to find out how to help him without alerting the authorities to what had occurred. He submitted that her statement to Ms Cammack that the accused would be furious with her when he woke up was consistent with this hypothesis and inconsistent with any anticipation of his death arising from knowledge that she had injected him with a lethal dose of heroin in order to kill him.
113. On the other hand, it was submitted on behalf of the Crown that the accused must have been home for about 40 minutes before attempting to contact either Mr Bowers-Taylor or Ms Cammack and that throughout that period she maintained what was described as a deathly silence. The accused apparently made telephone calls at 11.09 and 11.17 am and there is no evidence to suggest that she left the house again prior to the call to Mr Bowers-Taylor at 11.54 am and the call to Ms Cammack one minute later. However, whilst the evidence is not entirely clear it seems likely that there were telephones both upstairs and downstairs and she may well have wished to avoid Mr Cinque from overhearing a telephone conversation in which she was seeking to obtain heroin in order to kill herself. There is certainly no evidence to establish just when she discovered that Mr Cinque was in the condition that gave rise to the concern that prompted her to seek help from Ms Cammack.
114. Some support for the hypothesis propounded by Mr Pappas may be derived from Mr Mancini's evidence that only the day before she had explained that she had given Mr Cinque sleeping tablets during the course of the previous night so that she could commit suicide without his intervention.
115. However, it is the course of the accused's conduct from 11.55 am onwards that offers the most support for Mr Pappas' contention. Whilst she delayed ringing an ambulance and then gave a false name and address it is clear that she did a number of things in an attempt to save his life. She rang Ms Cammack and interrupted the call to attempt mouth to mouth resuscitation on Ms Cammack's instructions. She subsequently contacted the ambulance service and again attempted mouth to mouth resuscitation this time on the instruction of the ambulance officer who had taken the call. When the paramedics arrived she was obviously anxious to do what they could to save him and assisted in their attempts at resuscitation. When told that he was dead she became distraught and hysterical. At least from the time she initiated the call to Ms Cammack she plainly did not want him to die.
116. It is not easy to reconcile this anxious concern to save his life and distress at his death with an intent to kill him only a few hours earlier. However, this apparent incongruity must be considered in the context of the evidence concerning the mental state of the accused which is discussed later in this judgment in relation to the defence of diminished responsibility. Whatever may be the true explanation, the force of this consideration is in my view overwhelmed by the compelling nature of the Crown case.
117. Whilst I have carefully considered the arguments put to me by Mr Pappas and given due weight to the various considerations upon which he has relied I am nonetheless satisfied beyond reasonable doubt that at the time the accused injected heroin into the body of Mr Cinque she intended to cause his death.
The defence of diminished responsibility
118. The availability of such a defence is governed by s 14 of the Crimes Act which is in the following terms:
"(1) A person on trial for murder shall not be convicted of murder if, when the act or omission causing death occurred, the accused was suffering from an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent cause or whether it was induced by disease or injury) that substantially impaired his or her mental responsibility for the act or omission.(2) An accused has the onus of proving that he or she is, by virtue of subsection (1), not liable to be convicted of murder.
(3) A person who, but for subsection (1), would be liable (whether as a principal or accessory) to be convicted of murder is liable to be convicted of manslaughter.
(4) The fact that a person is, by virtue of subsection (1), not liable to be convicted of murder does not affect the question whether any other person is liable to be convicted of murder in respect of the same death.
(5) Where, on a trial for murder, the accused contends -
(a) that he or she is entitled to be acquitted on the ground that he or she was mentally ill at the time of the act or omission causing the death; or
(b) that he or she is, by virtue of subsection (1), not liable to be convicted of murder;
the prosecution may offer evidence 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."
119. It may be seen that the accused bears the onus of proving each of the three elements involved in a defence under s 14, namely that the accused was suffering from an abnormality of mind when she committed the act which caused Mr Cinque's death; that the abnormality was caused by one of the stipulated conditions; and that the abnormality substantially impaired her mental responsibility for the act.
120. The standard of proof in relation to this defence is proof on the balance of probabilities.
121. In R v Byrne [1960] 2 QB 396 at 403 Lord Parker CJ delivering judgment on behalf of a Court of Criminal Appeal made the following observations:
" `Abnormality of mind,' which has to be contrasted with the time-honoured expression in the M'Naughten Rules `defect of reason' means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment. The expression `mental responsibility for his acts' points to a consideration of the extent to which the accused's mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts."
122. In relation to the question of whether at the time of the lethal act the accused was suffering from an abnormality of mind, his Lordship said that medical evidence was no doubt of importance but the jury was entitled to take into consideration all of the evidence including the acts or statements of the accused and his or her demeanour. They were not bound to accept the medical evidence if there was other evidence before them which in their judgment outweighed it. On the other hand, the aetiology of the abnormality of mind was said to be a matter to be determined on expert evidence. His Lordship regarded the issue of substantial impairment as essentially one for the jury. Medical evidence was relevant but whether the impairment could properly be called "substantial" was a matter upon which juries might quite legitimately differ from medical practitioners.
123. In Purdy (1982) 7 A Crim R 122, the NSW of Criminal Appeal said that whilst the aetiology of the abnormality of mind will normally be supported by expert evidence the description given by the relevant expert may permit an inference that it was due to one of the specified causes even though not expressed in terms corresponding to the words of the statute. Whilst not suggesting that medical evidence was irrelevant to the issue of substantial impairment the Court observed that impairment of responsibility to a substantial extent is a legal and not a medical concept (per Glass JA at 125, 126).
124. In the more recent decision of R v Gieselmann (unreported, NSW Court of Criminal Appeal, 12 November 1996) Mahoney P stressed that whilst the behaviour of the accused could legitimately be taken into account in determining whether she had been suffering from an abnormality of mind, abnormal or outrageous acts could be seen as the result of other things such as stupidity or simple wickedness. Hence the mere abnormality of an act does not always establish an abnormality of mind. Conversely, the existence of an abnormality of mind does not of itself justify an inference that the person's mental responsibility for every abnormal act has been substantially impaired. As his Honour observed, an accused is not required to establish that the abnormality of mind caused the acts constituting the offence but merely that it impaired his or her mental responsibility for those acts. However, his Honour was of the view that there had to be some form of causal or at least consequential relationship between the abnormality of the mind and the acts in question.
125. His Honour also addressed the question of "mental responsibility", expressing the view that the section was directed toward an impairment of the accused's mental functioning and hence her capacity to act rationally rather than to a normative judgment relating to accountability for her conduct based upon legal, social or moral grounds.
126. In the present case the Crown and the defence each called expert witnesses to give evidence as to the likely mental state of the accused at the relevant time. Extensive medical notes, records and reports were also tendered.
127. In assessing the evidence of each of the expert witnesses it was necessary to take into account a number of factors.
128. First, the accused did not give evidence. Much of the history which she related to Dr Byrne and Professor Mullen was established by other evidence. Indeed the Crown led extensive evidence of her background and behaviour, particularly during the months leading up to 26 October 1997. Further aspects of the history were revealed by the medical records which were tendered by consent and by the evidence of the accused's father which I accepted as both credible and reliable. Furthermore, evidence of contemporaneous representations she had made during the course of the interviews with the expert witnesses concerning her health, feelings, sensations, intention, knowledge or state of mind were admissible under s 72 of the Evidence Act 1995. Nonetheless, insofar as the history extended beyond such contemporaneous representations and was not established by extraneous evidence it remained unproven and it was necessary to discount any expert opinion to the extent to which it was based upon such unproven assertions.
129. Secondly, the experts called on behalf of the Crown, Professor Hayes and Dr Diamond, did not have the opportunity of interviewing the accused. It is true that even Professor Mullen relied largely upon a process of deduction from medical records and those records and other relevant documents were, of course, available to Professor Hayes and Dr Diamond. Nonetheless, I think that they were placed at something of a disadvantage by being denied the opportunity to form any impression of the accused based upon their own observations. Professor Hayes conceded that for this reason her diagnoses could be only tentative. In contrast Dr Byrne who had spent several hours with the accused as early as March 1998, was obviously confident of his diagnoses which relied heavily on impressions formed during those interviews.
130. Thirdly, none of the expert witnesses had access to all of the evidence adduced at the trial concerning the accused's behaviour and demeanour during 1996 and 1997. That evidence was an important factor in the assessment of some of the opinions proffered.
131. For example, whilst Dr Diamond accepted that the accused was distressed about the imperfection of her body and believed that she would never recover her fitness and strength he did not accept that she had believed the illness to be terminal. However the evidence before me revealed that well before Mr Cinque's death the accused had told people that her condition was degenerative and would inevitably lead to incapacity and ultimately death. Dr Diamond had previously disagreed with Professor Mullen's diagnosis of a moderate to severe depressive illness but when asked to assume that the accused did believe that she was suffering from such a degenerative and ultimately terminal illness and that that belief was baseless he said that in that event he would be looking at "the development of a major depressive illness, the development of a transient psychosis . . ." Whilst he remained sceptical as to whether the accused had actually held such a belief the evidence available to him in relation to that issue was more limited than that available to me.
132. Similarly, Professor Hayes thought that the most likely explanation for the accused's complaint of ants crawling around under her skin was that she had been describing the sensation of formication which is sometimes caused by drug abuse. On the other hand, Dr Byrne said that he took some trouble to find out whether the description which the accused had given him was a metaphor for a sensation or was a real belief and that it was quite clear that she believed that there were ants actually crawling under her skin. When this possibility was put to Professor Hayes she said that if a person actually believed that there were ants under the skin it would be more likely to be a psychotic belief. Of course, the truth of the assertion was not substantiated by direct evidence from the accused but there was other evidence to which Professor Hayes had not had access concerning the nature of her complaints and to the context in which they were made. In the light of the evidence available to me I am not satisfied that this matter can be dismissed in the manner suggested by Professor Hayes.
133. Accordingly, whilst all of the expert witnesses were eminently well qualified and their opinions were entitled to considerable respect I approached their evidence cautiously and considered it in the context of the factual assumptions upon which it was based, the quality of the evidence, if any, to support those factual assumptions and any additional evidence available to me which may have cast doubt upon the validity of their opinions.
134. Dr Byrne said that he had based his opinions on information gleaned from a number of sources and listed them in a hierarchy according to how much weight he placed upon them. First, he relied upon his own direct observations of the accused during his examination, secondly, psychological test data, thirdly, aspects of the history she had given him which he had been able to corroborate from independent sources such as medical records, fourthly, the history obtained from her parents and, fifthly, from the history which the accused gave him which he was unable to confirm by extraneous evidence. In relation to the last source of material he said that he assumed that whilst some information she had given him might be correct some might not. He was taken through his report and asked how much weight he attached to particular parts of that uncorroborated history. Overall, it appeared to me that he had given relatively little weight to such assertions though as his evidence concerning the accused's answers to his question about the ants demonstrated he had taken it into account to some extent.
135. He was of the opinion the accused had been suffering from a severe borderline personality disorder and severe depression.
136. He explained that a borderline personality disorder was marked by four common symptoms: problems in establishing a self image; mood disorders such as depression and mood swings; problems relating to other people; and usually, a history of quite significant impulsivity. He also said that people who suffer from borderline personality disorders are easily angered, become angry in a very intense way and that "it's difficult to dissuade them at times". Typically, they develop paranoid ideas often associated with symptoms about their body. He said that a condition of this kind is the only personality disorder of which he was aware in which a person might be expected to move into brief periods of psychosis. Indeed, the term "borderline" was derived from the belief held in the early 1950's that the disorder was on the borderline between normality and schizophrenia.
137. Dr Byrne explained that when he spoke of the accused as suffering from depression he did not mean a normally depressed mood but a psychological disorder requiring treatment. In his opinion the accused was suffering from an abnormality of mind on 26 October 1997. That abnormality of mind consisted of a significant mental illness, reflected in her psychotic belief or delusion that she was dying, a serious depression and a severe borderline personality disorder.
138. When asked whether her mental responsibility in relation to the death of Mr Cinque would have been in any way impaired he expressed the following opinion"
" . . .this was a woman who was quite seriously psychologically ill. She had been living with a psychotic delusion for some months, she had been preoccupied with suicide. We know that she had gone to the Library and researched the Hemlock Society, I think that has been independently established. My examination showed her to be someone with quite poor reality testing and quite poor judgment (sic) someone whose mood easily fluctuated, someone who had little, if any, ability to think about the nature or consequence of her behaviour. That is to say she could behave in a reasonable way but the ability to stand back and think about it was rather limited. She had formed a plan, which was closely as I can tell was a homicide/suicide arrangement - those factors together with what I assume to be some sleep deprivation, but even excluding that, would mean at the time she had a significant impaired ability to control her emotions and to think clearly about what she was doing, clearly and rationally. I am not suggesting that she could do none of those things I am simply saying that on a continuum of being perfectly clear and rational, to being completely psychotic and legally insane she was well down the continuum in a mental impairment in my view.
139. When pressed about where her ability to control her conduct might lie on a scale of 1 to 10 he said that if a rational killing was taken to be 1 and a grossly psychotic and insane killing was taken to be 10 "this woman comes up in the 6 to 7 range".
140. He said that he felt that the conversation with Ms Cammack revealed grossly impaired reasoning.
141. Dr Byrne was subjected to an extensive and searching cross-examination. Nonetheless, I found him to be an impressive witness and, subject to the qualifications to which I have already referred, I found his opinions both helpful and persuasive.
142. Professor Mullen was asked to put aside any history he may have been given by the accused and to rely upon the medical records which he had been furnished including notes from the Mental Health Crisis Team. He said that on that basis alone he had little doubt that the accused had been significantly depressed during 1997. He thought that she was suffering from what he described as a masked depression. The accused had presented not with complaints of depression but with complaints of extraordinary physical symptoms and of degeneration and deterioration but there had been a number of assessments where doctors had been able to go beyond that superficial presentation to document the signs of the depressive illness. In his opinion that illness was moderate to severe but, "closer to the severe". When asked whether the depressive illness was affecting her mental functioning as at 26 October 1997 he offered the following explanation:
"I think it's quite important your Honour, to understand the way this depressive illness manifested. It manifested most obviously in this woman's totally erroneous beliefs that she was physically deteriorating, that her actual - it's recorded here- her actual physical fabric was falling apart and that she had a disease which would lead on potentially to invalidism and to a fatal outcome. So the depression had profoundly altered her experience of herself and her understanding of her own physical health. That depression was also leading her to believe that death was not only an acceptable alternative but was something to be sought, so that she had reached such a stage of depression that suicide seemed to her a rational and reasonable resolution of her problems. She had, we have just on the notes alone, clear evidence that her judgment about herself and judgment about the correct consequences or proper actions to take, in view of her misjudgments were markedly and really quite grossly disordered. So at the very least, it would be my opinion at the time that her capacity to understand the situation in which she was actually placed and her reasoning about what were appropriate and proper actions, were markedly disordered."
143. Like Dr Byrne he said that he did not think the condition had been so extreme that she had no capacity to understand right from wrong.
144. Professor Mullen said that this was an unusual case in that the documentation was extraordinarily rich. When he interviewed the accused she had been able to provide the kind of detailed account of her internal world and her feelings and emotions during the period of 1997 in much greater detail and with a great deal more subtlety than was obtained from the notes. It was his view that what she told him was entirely consonant with what he had seen in the notes but that it made it much clearer that "what was going on" was a severe depressive disorder.
145. Whilst he did not rule out a borderline personality disorder he said that he was cautious about ascribing such a diagnosis to someone with an underlying psychiatric illness of the kind which he had described. He did not think that drug abuse was an adequate explanation.
146. He was also subjected to a searching cross-examination. When it was suggested that it put him in a difficult position to obtain a history from a patient and then be asked to put it out of his mind he said that normally it would be virtually impossible. In the present case, however, the wealth of documents painted a clear picture and he needed only to put them into a sensible psychiatric context. He said that the terms of the conversation with Ms Cammack suggested a very disordered appreciation of what was occurring. He rejected the suggestion that selfishness rather than a psychiatric illness might have been an adequate explanation for the killing.
147. Like Dr Byrne, Professor Mullen was an impressive witness and I placed considerable reliance upon his opinion.
148. Professor Hayes, who was called by the Crown, based her evidence substantially upon psychometric tests administered to the accused both before and after the death of Mr Cinque, various medical records and written statements which had been obtained from a number of Crown witnesses. She said that she had not seen the accused in a clinical setting or been able to have any consultation with her and that hampered any diagnosis that she might make.
149. When asked about the mental condition of the accused she offered a number of possible diagnoses. One was a long-standing eating disorder and another was borderline personality disorder. She said there was also some evidence of fluctuating depression which may not be a clinical entity on its own but may "hang off" the eating disorder.
150. Professor Hayes was of the view that the eating disorder would have impaired the accused's self perception but it would not have impaired her cognitive or reasoning faculties outside of her preoccupation with her own self image and body. She said that a borderline personality disorder impairs a person's ability to interact with other people and can lead them to have chaotic thoughts but not impaired cognitive functioning. She said that the world can seem a bit chaotic because the responses of such people are chaotic but that if you gave an intelligence test to a person with a borderline personality it would probably be an accurate reflection of their intelligence. She also mentioned the possibility of drug abuse which might impair a person's reasoning ability during the time of intoxication.
151. When asked about the conversation between the accused and Bronwyn Cammack she said that it revealed no evidence of severe intoxication or loss of contact with reality which could implicate psychotic features.
152. Professor Hayes is, as I have indicated, an extremely well qualified expert. However, as she candidly conceded her diagnoses were only tentative and she was obviously very conscious of the limitations imposed by her inability to interview the accused.
153. Dr Diamond was of the view that the accused suffered from a personality disorder of the kind described in the Diagnostic and Statistical Manual of Mental Disorders 4th Ed as the "cluster B" personality disorders. Those clusters include anti social personality disorder, borderline personality disorder, histrionic personality disorder and narcicistic personality disorder. He believed that she had features of a mixed personality disorder but said that he would not quibble about the diagnosis of a borderline personality disorder. He said that in addition to the personality disorder she had at various times demonstrated episodes of psychiatric illness of one sort or another. The question of a major depressive disorder had been raised from time to time throughout the medical documentation concerning the accused but he thought that while she may have well experienced episodic bouts of depression the intensity and pervasity of the depressive illness, especially at the time of the death of Mr Cinque, was difficult to establish. He concluded that she was a vulnerable individual who had a personality disorder and other psychiatric problems including problems of depression and a major eating disorder. However, he did not think that any psychiatric illness of any significance other than her personality make up had contributed to her actions in causing the death of Mr Cinque.
154. Dr Diamond was asked about the accused's statement that at the time she injected heroin into Mr Cinque it was as if it were a plan and about her use of the phrase "and then the reality hit me". He expessed the view that that was significant and referred to his understanding of a dissociated state being part of an underlying personality disorder "which as it is described in the borderline personality disorder phenomenology, that people in that state when confronted by overwhelming reality, lose that sense of detachment, that sense of unrealness, that may be operating up until that point". He added "that is a very clear reality check, and it is at that point that the full impact of what actually is being done becomes apparent and I think that description you have given is very strongly supportive of that understanding that I have described". Similarly, when asked about the comment made to Mr T on the morning of 26 October 1997, that "today's the day", he said that there was a glibness to that comment which was worrying because it failed to reflect an appreciation of what were actually the consequences. He explained that personality disorders could be very disturbing states but that they were quite different from profound psychosis in that people affected by such a condition did not respond to reality checks in the same way.
155. When asked whether it was likely that she would have really grasped the implications for Mr Cinque, his family or anyone else, he said that from his reading of the information available to him "that came later". He said that people with borderline personality disorders require a firm set of constructs around them because they lack an internal core structure of self upon which they can rely and make sound and consistent judgments. He did not believe that the accused had an external set of realities upon which to rely. He said that the ability to actually appreciate the situation of others was lacking and that it took a very profound state of affairs to impose that upon her. In cross-examination he said that she was not an automaton but that she had been very focused upon her own internal anguish and distress and her perceived predicament without really seeing it as a part of a whole. She was looking at a segment or a fragment. He felt that there had been a series of reality checks consisting, first, of the discovery of Mr Cinque unconscious and apparently with breathing difficulties and, second, the statement of Ms Cammack about a murder charge. He said that at that point "Her fantasy and her idiosyncratic perception of what she was doing and what this was all about was suddenly confronted by some very clear bold reality and consequences".
156. However her ability to really grasp the implications for herself and the likely implications for Mr Cinque and his family would not have come to the fore until she was in custody. He agreed that until then she would "have had no proper appreciation or perception of the results of what she might do".
157. When questioned further about the accused's plan he said that she had been staging her own drama. She was creating a focus of attention in terms of her narcissistic needs to be taken seriously, to be seen as seriously troubled, and that the whole idea and purpose was not about death. Indeed, he said that death was almost ignored in the whole construct. He agreed that this involved perverse thinking in the sense of the inability to really grasp the seriousness of what was implied. When it was suggested to him that judged by the standards of someone who is not ill she would have had a very substantially reduced ability to make reasoned judgments in consequence of her inability to grasp the implications or the consequences of her actions, he answered, "and I think she demonstrated that".
158. Dr Diamond was also an impressive witness and whilst I did not accept some of his conclusions I found his evidence of considerable assistance.
159. There was other evidence concerning the mental health of the accused. In particular, Dr Diamond's report refers to an approach made to the ACT Community Mental Health Team on 16 May 1997 by the accused's mother who was also a medical practitioner. She reported that she believed her daughter to be "acutely suicidal". A social worker thought that the accused was distressed but there was "no psychiatric illness as such". However on 22 May 1997 the accused herself contacted the Mental Health Team. She said that she felt suicidal and had received very bad news about test results regarding her health. She was assessed fully by a psychiatric registrar Dr J Raymond, who recorded that she had been utterly preoccupied with somatic complaints, would not tell him the names of the medical practitioners she had been seeing and had forbidden him to ring her parents. He reached a provisional diagnosis of "possible psychotic depression or unusual eating disorder or prodromal schizophrenia " and noted that there may be personality disorders in play.
160. It is also clear that she had seen a number of medical practitioners including psychiatrists who were not called to give evidence. I am prepared to infer that they would not have assisted her case.
161. Having considered all of the relevant evidence including that relating to the accused's behaviour and disposition both before and after the death of Mr Cinque I am satisfied that at the relevant time she was suffering from a borderline personality disorder and from a moderate to severe depressive illness. I am also satisfied that she had been suffering from an eating disorder and that the depression may have had its genesis in that disorder. There is I think significant support for Dr Byrne's diagnosis of a borderline personality disorder in the evidence of Dr Diamond and in the long term history as revealed by Dr Singh and Ms Fortunaso. His diagnosis of a depressive illness was emphatically confirmed by Professor Mullen whose evidence on this issue I preferred to that of Dr Diamond and Professor Hayes. There was also an abundance of evidence of the accused abruptly becoming withdrawn, retreating to her bedroom for up to two weeks at a time, virtually abandoning her university studies, appearing dishevelled and poorly dressed, being tearful and expressing suicidal ideation. As Professor Hayes conceded, such factors are obviously relevant to a diagnosis of depression.
162. The diagnosis of an eating disorder is also amply confirmed by the evidence of Dr Singh and other witnesses.
163. Ultimately, however, I found Dr Diamond's opinion particularly helpful in relation to his view that statements made by the accused to Mr T and later to Ms Cammack and further statements made after Mr Cinque's death reveal a level of dissociation. I think that Dr Diamond is right in concluding that the accused had been entirely absorbed with her own needs and internal anguish and that her plan which was later widened to include killing Mr Cinque was a drama staged with the intention of meeting her own psychological needs and evoking a response from others. I accept his view that whilst her capacity to think logically might not have been impaired so that she would have been able to understand in an abstract or intellectual sense that as a result of her actions Mr Cinque would die, she had no real appreciation of the implications or consequences of her behaviour.
164. In my view this opinion is confirmed by the manner in which these tragic events unfolded. The accused's irrational beliefs of grave illness, ants crawling under her skin and her head being relocated onto the wrong body were described by Dr Byrne as clear psychotic symptoms. In mid 1997 they were augmented by further irrational beliefs that her illness had been caused by Ipecac syrup and that Mr Cinque must therefore bear responsibility for her physical degeneration and ultimately for her death. I am satisfied that it was these further irrational beliefs that ultimately led her to kill Mr Cinque.
165. Whilst the accused may not have made a definite decision until shortly before the fatal injection it is clear that she had been considering such an act for weeks if not months. Yet she was an intelligent well educated person whom one would have expected to be well aware of the consequences of her behaviour. Furthermore, she was living with Mr Cinque and would have been constantly confronted with this man who had obviously been an important figure in her life but whom she intended to kill. She had also taken various steps in preparation such as obtaining heroin, learning how to use heroin, arranging for Ms Cammack to obtain a prescription for Rohypnol and for Ms Rao to obtain the tablets. If all else failed one would have expected her to have been jolted back to reality by the reaction which Mr Cinque had to the tablets she had given him on Friday night, the confrontation initiated by Ms J on Saturday or, ultimately, the act of actually injecting the lethal dose of heroin into his body. She must have had at least an intellectual understanding of the fact that he would die and there was ample time for reflection, regret and change of heart. Yet it appears that upon seeing Mr Cinque unconscious and breathing heavily she abruptly realised that she didn't want him to die.
166. I do not accept Professor Hayes' hypothesis that in contacting Ms Cammack she may have been simply trying to make it look as though she had made an attempt to save him. On the contrary, I think that she was seeking a way out of the whole situation by attempting to find a means of reviving him without alerting either him or the authorities to what had occurred. In that event the relationship could have been resumed. Of course, having administered a dose of heroin which she had previously determined should be sufficient to kill him this was a wholly unrealistic expectation. It is also I think significant that when Ms Cammack mentioned the possibility of a murder charge the accused said "Shit, you're right". The accused was an intelligent well educated person undertaking a degree in law. Yet despite a long-standing plan to kill someone it appears that she had not previously thought about the criminal nature of this act.
167. As I have mentioned there is clear evidence that she attempted to save him and that upon being informed of his death she was distressed and hysterical. The evidence of her contemporaneous statements is also revealing. Witnesses record her saying things like "This is not happening. I don't believe this" and "this is not happening, you have to bring him back". She seemed unable to accept the reality of his death even though she had planned to bring it about.
168. Some of the letters seized from the accused's locker also seem to express not only regret but bewilderment. To take but one example, she asks her mother, "Why take Joe too?" Even in retrospect she seemed to have been casting about for some insight into the thought processes that had led her to take his life.
169. The Crown now concedes that the accused was suffering from an abnormality of mind at the time of Mr Cinque's death. Furthermore, whilst the specific aetiology may not have been identified in relation to each diagnosis offered by the various expert witnesses the Crown accepts that any of the diagnostic categories identified fell within the category of aetiology's stipulated in s 14 of the Crimes Act. Accordingly, the only issue which I am ultimately required to resolve is whether the abnormality of mind substantially impaired the accused's responsibility for the act in question.
170. I have carefully considered the evidence of rational and appropriate thinking in the period leading up to Mr Cinque's death, the nature and extent of the plan that preceded it and the other matters to which the Crown has quite properly drawn my attention. Nonetheless, having regard to all of the evidence on this issue I am quite satisfied that her mental responsibility for the act was substantially impaired.
171. Accordingly, in relation to the first count I find the accused not guilty of the offence of murder but guilty of manslaughter.
I certify that this and the one hundred and seventy one (171) preceding paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.
Associate:
Date: 23 April 1999
Counsel for the DPP: Mr T Golding
Solicitors for Accused: Director of Public Prosecutions
Counsel for the Defendant: Mr J Pappas
Solicitors for Defendant: Sutherland & Tiirikainen
Dates of hearing: 22-26 March, 29 March-1 April, 6-8 April,
12-16 April 1999
Date of judgment: 23 April 1999
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