R v Sp (No 2) [2006] ACTSC 78 (12 July 2006)

Last Updated: 13 February 2007

R v SP (No 2) [2006] ACTSC 78 (12 July 2006)

CRIMINAL LAW - offences against the person - homicide - murder - infanticide

CRIMINAL LAW - criminal liability and capacity - defence matters - insanity

Crimes Act 1900 (ACT) ss 308, 320, 324

R v Goonerage [2005] ACTSC 96 followed

EX TEMPORE JUDGMENT

No. SCC 79 of 2006

Judge: Madgwick J

Supreme Court of the ACT

Date: 12 July 2006

IN THE SUPREME COURT OF THE )

) No. SCC 79 of 2006

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: R

AND: SP

ORDER

Judge: Madgwick J

Date: 12 July 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The accused be acquitted on the ground of mental impairment.

2. The accused submit to the jurisdiction of the Mental Health Tribunal to enable the Tribunal to make a mental health order, and for that purpose she is to report to the Tribunal's offices within seven days.

1. The accused is charged that on 11 October 2005 at Canberra in the Australian Capital Territory she murdered her son, then a few days old. She has pleaded guilty on the ground of mental impairment in accordance with what was s 320 of the Crimes Act 1900 (ACT) (`the Crimes Act').

2. Pursuant to that section, an accused person had an entitlement to be acquitted of an indictable offence on the grounds of mental impairment if he or she established on the balance of probabilities that at the time of the alleged offence the accused was, as a result of mental dysfunction or mental illness, either incapable of knowing what he or she was doing, or incapable of understanding that what he or she was doing was wrong. Subsection (3) provided that evidence could not be adduced by the prosecution to establish that an accused was so entitled to be acquitted except with the leave of the Court. I gave such leave.

3. Although there was no issue between the parties, the proceedings remain a criminal trial, and accordingly I direct myself, in accordance with the law, in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. Shortly, for a case such as this, Spender J summarised those directions in R v Goonerage [2005] ACTSC 96 at [8]- [10], a judgment given on 30 September 2005, and those directions are appended to these reasons.

4. The accused gave birth to her deceased son at 5.30 am on Thursday 6 October 2005. She was then a young married woman who had been ordinarily welcoming of the birth of her child. She was a person of impeccable character, qualified in one of the learned professions - not the law - and well supported both by her husband, who has continued to display understanding and support throughout, and also by her mother who, by reason of her own medical training, was present in Australia to support her daughter and was very well qualified to do so.

5. The child was born healthy.

6. During the pregnancy, the accused had suffered some degree of depression, but it seems to have been within the relatively less serious realms of that disease. She had appropriate treatment for it, although she declined to take prescribed medication out of, I understand, a fear for what might be the effects of the medication on her child. That, in fact, shows that she had ordinary or appropriate love and concern for her child-to-be.

7. After the birth, she had some difficulties with breastfeeding, and there were occasions at the hospital when she was crying and apparently very anxious as to how she would manage when the baby went home. However, the nursing staff did not see anything which indicated to them that she might be suffering from postnatal depression, as they understood it.

8. Upon discharge from the hospital, the accused went home with the baby, where she lived with her husband, and where her mother was also staying.

9. On the afternoon of the baby's death, the child slept. The accused told her husband she was worried something might happen to the baby and so she would stay in the bedroom where the baby was while he slept. She did so for some time until leaving the room to have dinner with her husband, during which time her mother looked after the baby.

10. After dinner, the accused returned to the bedroom to watch over the child. At about 9.30 pm, he awoke and the accused breastfed him and attended to changing his clothing. The child was unsettled and crying, and this continued for some time. At about 11.30 pm, the accused took the baby out of the bedroom so that her husband could get some sleep.

11. She took the child into the lounge room and rocked and patted him in an effort to settle him. The child was recurrently unsettled. After a time, the accused took a cushion from one of the seats in the family's lounge room and put it over the child's face. She took some tissues from a box and put them inside the baby's mouth and put the cushion back over his face. The child struggled for breath and his body began to shake. This stopped. The accused continued to pat the child after he had stopped breathing. She disposed of the tissues, took the child into the bedroom and lay him beside her sleeping husband. She lay down beside the child and continued to pat him, eventually falling asleep herself.

12. At about 3.30 am her husband awoke and saw that there was blood around the baby's nose and that he was cold to the touch. He shook the child and tried to listen for a heartbeat and breathing. He summoned his mother-in-law who tried to resuscitate the child, and they rang for an ambulance.

13. By this time, the accused had woken. She said, `It's all my fault. I've killed my baby.' Upon the arrival of the ambulance officers, they confirmed that the child was dead. Soon after, the police attended the house. The accused was distraught and did not talk to them.

14. At about 7.30 am on the following day, 12 October 2005, the accused got up, and observing the baby items in the house, became extremely upset. She was very withdrawn and quiet throughout the day. At 3.00 pm she said to her husband:

I'm sorry for what I've done and what I've put us through. I don't know what I did, I don't think I had any control over what I did. There were voices in my head telling me to do it and I just did it. I didn't think of the consequences. I put the pillow over his head. I beat him in several places. I can't live with this guilt in me. I'm going to ring the police and tell them everything I've done. I need to pay for my own actions.

15. At 5.20 pm the accused rang the police and said that she had killed the baby by holding a pillow over his face. The police attended and arrested her. She participated in a taped record of interview and made full admissions to killing her baby.

16. She was in custody for nearly four months before obtaining bail. While she was in custody, she was held for almost all of the time at the psychiatric services unit of the Canberra Hospital. Doctor Allnutt, a specialised forensic psychiatrist says in a report:

There is evidence to support the reasonable conclusion that in the third trimester of her pregnancy she developed symptoms consistent with a depressive disorder. It would be reasonable to conclude that there had been a gradual deterioration in her mental state during her third trimester and that depressive symptoms were likely active at the time of the delivery.

In the postnatal period and before returning home, she describes the emergence of symptoms of the hypomania including euphoria, racing thoughts, mildly disorganised thoughts and optimism about her pregnancy. As such she probably manifested a mixed mood state (depressive and hypomanic symptoms appearing together), which was brief at the time. It is also...possible that at that stage she was manifesting early signs of an emerging psychosis in the form of disorganised thinking. It is probable that the hormonal disturbances that occurred in the postnatal period increased her vulnerability to the development of psychosis. At the material time ... she experienced the emergence of symptoms consistent with psychosis, which in the period immediately before the time of the alleged offence and during the time of the alleged offence, were predominately auditory hallucinations of a command nature. [I interpolate that it has been her consistent story that she heard irresistible voices telling her to kill the child.] It is probable that her capacity for maintaining insight into these experiences was substantially impaired. There is evidence to support the view that psychotic symptoms persisted for at least a few days and possibly weeks after the alleged offending in the form of derealization, depersonalisation, and ideas of reference. It is likely that her recovery from the psychosis was rapid as a consequence of the early intervention triggered by the death of her child and the identification that she may be suffering from a mental disorder with consequent and psychiatric intervention. It is likely that had she not been treated that the psychosis would have persisted or recurred at a later stage.

17. Dr Allnutt carefully considered the possibility that the accused had simply had a `nonpsychotic motive', and in particular, that it might simply have been `frustration and subsequent aggression, due to irritability, towards the child' which led to the violence she inflicted on the baby. However, he explains carefully that he concludes, and why he does, that `the voices she described at the time of the alleged offence were consistent with true auditory hallucinations.'

18. He concluded:

I believe, however, that the `mental impairment' or `mental illness' was of such a severity that it substantially reduced the accused's capacity to understand that her actions were wrong. At the time of the alleged offence, her description is of voices that appeared to have dominated her thought processes. In my opinion the voices overwhelmed her capacity to think and reason about them (the voices) and consider what they were commanding her to do. It is probable that she was driven by a desire to rid her self of the voices and driven to act by them; unable to reason about the nature of the voices and wrongfulness of her actions with a moderate degree of sense of composure so as to understand that what she was doing was wrong.

Immediately after smothering the child and returning to the bed she likely maintained capacity to be aware of the fact that something had transpired between herself and the child. It is probable though that she was in a depersonalised state and thus less capable of contemplating what had transpired choosing to believe that the child was not harmed but sleeping.

19. In oral evidence, Dr Allnutt made it clear that, in his opinion, the accused lacked the capacity, at the relevant time, to understand that what she was doing was wrong.

20. Evidence was also given on behalf of the accused by Dr Danny Sullivan, a consultant forensic psychiatrist. He confirmed that at the time of the killing of the baby, the accused was suffering from a postnatal psychosis which would qualify as a mental illness or mental dysfunction. His opinion was as follows:

`At the time of the death of [the baby] I do not believe that [the accused] was aware of the nature of her actions. She gives a description of having sought to stop the voices - which would seem to have been her primary aim - and not to have been aware at the time that her actions in doing so led, to [the baby's] death. Furthermore, in going to sleep and putting the baby in the bed, [the accused] demonstrated that she was not aware of having done wrong. There was no attempt at concealment of the killing or of seeking to make another cause of his death apparent. Thus I would regard [her] as having been, at the time of the killing of [the baby], under mental impairment within the meaning of the Act.

21. In these circumstances, the only sensible conclusion is that the accused had a mental dysfunction or mental illness, and by reason of such dysfunction or illness was incapable of understanding that what she was doing was wrong when she killed the baby. She may well also, in the sense described by Dr Sullivan, have been incapable of knowing what she was doing: she may not have understood that smothering the child would actually lead to his death, though I have more confidence in the other way in which she has made out her case. On these findings, the law is that she is entitled to be acquitted on the grounds of mental impairment and she is so acquitted.

22. The consequence of that is that the accused falls to be dealt with under s 324 of the Crimes Act. That section provides that, if an accused is charged with a serious offence and a special verdict of not guilty because of mental impairment is returned or entered, the Court must order that the accused be detained in custody until the Mental Health Tribunal (`the Tribunal') orders otherwise, unless, considering the criteria for detention set out in s 308, the Court is satisfied that it is more appropriate to order that the accused submit to the jurisdiction of the Tribunal to enable it to make a mental health order. If the Court is satisfied that it is more appropriate simply to make a non-custodial order that the accused submit to the jurisdiction of the Tribunal, the Court must make that order.

23. Section 308 requires the Court to consider various criteria for detention which include the nature and extent of the accused's mental impairment, including the effect that it is likely to have on the accused's behaviour in the future; whether release is likely to substantially impair the accused's health or safety, or whether the accused might be a danger to the community; the principle that a person should not be detained in a correctional centre unless no other reasonable option is available; and the nature and circumstances of the offence with which the accused was charged.

24. In plain language, this young woman descended into madness for a short period during which she killed her own very young baby. By reason of the death and the intervention of others, she immediately had good and thorough medical care and has continued to have it since. She has had, as I indicated earlier, the ongoing support of her husband and appropriate medical care, which she willingly undertakes. She is making impressive progress towards rebuilding her own shattered life. She has been doing voluntary community work and is, with her treating psychiatrist's encouragement, starting to look to re-enter paid employment. She is not presently a danger to anyone, including herself. It is not reasonable to think that in the future she might pose any danger to anyone, including herself, unless she should fall pregnant. Her own high intelligence, moral sense and good character, together with the ongoing support of her husband and other family members, including her mother, together with her ready acceptance of psychiatric treatment, indicate that, as it happens, the community can have reasonable assurance that she is not likely, within the meaning of s 308, to be `a danger to the community'.

25. Under the circumstances, the Director of Public Prosecutions has rightly joined counsel for the accused in submitting that there is no sensible basis for depriving her of her liberty by making a custodial order, and that I should simply order that the accused submit to the jurisdiction of the Tribunal to enable the Tribunal to make an mental health order.

26. I do so order. For that purpose, the accused is to report to the Tribunal's offices within seven days.

27. I add that it is conceivable that there would be cases, perhaps not limited to infanticide, where a person who has been found not guilty of a serious offence by reason of mental impairment, may become quite free of mental dysfunction or illness, but nevertheless retain a particular vulnerability to lapsing back into such a state, with potential risk to some member of the community or him or herself. Difficult questions arise about what might be the appropriate legislative response to such a possibility, if any. If the matter has not had recent consideration, then in my opinion it should be considered by those charged with formulating policy as to mental health matters and with propounding any necessary inroad, or further inroad, into the liberty of citizens.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Date: 28 July 2006

Counsel for the Crown: Mr R Refshauge SC

Solicitor for the Crown: Director of Public Prosecutions (ACT)

Counsel for the Accused: Mr B J Salmon QC

Solicitor for the Accused: Legal Aid Commission (ACT)

Date of hearing: 12 July 2006

Date of judgment: 12 July 2006

APPENDIX

Extract from R v Goonerage [2005] ACTSC 96:

`... General directions and principles

8. As far as the conduct of the trial is concerned, I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

9. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.

10. Further, and most importantly in the circumstances of this case, if I am satisfied beyond reasonable doubt that the accused intentionally inflicted grievous bodily harm upon the complainant, I am to enter a verdict of not guilty by reason of mental impairment if I am satisfied on the balance of probabilities that at the time of the offences alleged against the accused he was:

(a) incapable of knowing what he was doing; or

(b) incapable of understanding that what he was doing was wrong.'