REGINA v DOOLAN [2010] NSWSC 147 (5 March 2010)

Last Updated: 19 March 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
REGINA v DOOLAN [2010] NSWSC 147


JURISDICTION:
Criminal

FILE NUMBER(S):
2008/20567

HEARING DATE(S):
3, 4, 8 and 9 February 2010

JUDGMENT DATE:
5 March 2010

PARTIES:
REGINA v
Barbara Ann DOOLAN

JUDGMENT OF:
Hall J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
C: P Barnett SC
O: L Wells SC

SOLICITORS:
C: S Kavanagh
O: Aboriginal Legal Aid


CATCHWORDS:
CRIMINAL LAW - verdict - judge alone trial - murder - circumstantial evidence case - accused not guilty by reason of mental illness

LEGISLATION CITED:
Mental Health Act 1990
Mental Health (Forensic Provisions) Act 1990


CASES CITED:
Barca v The Queen [1975] 133 CLR 82
Bratty v Attorney-General (Northern Ireland) [1963] AC 386
Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
Regina v Jennings [2005] NSWSC 789
Regina v Meddings [1966] VicRp 42; (1966) VR 306
Regina v Porter [1933] HCA 1; (1936) 55 CLR 182
Regina v Quick [1973] EWCA Crim 1; [1973] 1 QB 910
Regina v Radford (1985) 42 SASR 266
The Queen v Falconer [1990] HCA 49; (1990) 171 CLR 30

TEXTS CITED:


DECISION:
Not guilty by reason of mental illness



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

CRIMINAL LIST

HALL J

FRIDAY 5 MARCH 2010

No 20567 of 2008

REGINA v BARBARA ANN DOOLAN

JUDGMENT

HIS HONOUR:

(1) INTRODUCTION

1 The accused was charged on indictment dated 6 February 2009 that on 28 July 2005 she did murder her infant son, Zane Doolan, who was then aged five weeks.

2 The accused, who is presently 30 years of age, entered a plea of not guilty to the charge on 3 February 2010.

(2) THE HEARING

3 The hearing of the proceedings commenced on 3 February 2010 as a judge alone trial and the hearing continued on 4, 8 and 9 February 2010.

4 The Crown tendered two large volumes of material. Volume 1 became Exhibit A and Volume 2 became Exhibit B. The Crown additionally tendered the following:-

• Exhibit C - Transcript of ERISP with Howard Dennis on 28 July 2005.

• Exhibit D - DVD of crime scene on 28 July 2005.

• Exhibit E - Transcript of ERISP with Patrick Dennis on 28 July 2005.

• Exhibit F - Photo of living room marked by Patrick Dennis.

• Exhibit G – Bundle of documents from Justice Health.

5 The Crown also called two lay witnesses, Mr Patrick Dennis and Mr Howard Dennis. They were both present in the house at Bathurst where the child died on 28 July 2005.

6 On the latter date, the accused’s baby, Zane, was found lying face down in water in the bathtub located in the bathroom. Mr Howard Dennis reported the discovery of the baby to police shortly at or about 12.45 pm on 28 July 2005.

7 The Crown called the following medical witnesses:-

(1) Professor David M Greenberg, forensic psychiatrist. Professor Greenberg’s report dated 8 July 2009 was tendered in evidence and formed part of Exhibit B (tab 39).

(2) Professor Peter Stephen Joseph Ellis, regional forensic pathologist, Queensland Health Forensic and Scientific Services.

(3) Professor Roger William Byard, senior specialist forensic pathologist, Forensic Science (Adelaide).

(4) Dr Martin Patfield, consultant psychiatrist.

8 Ms L Wells SC, for the accused, called Dr Bruce Westmore, clinical forensic psychiatrist.

9 The accused, her two year old daughter and baby Zane had arrived at premises located in Rocket Street, Bathurst (“the premises”) on 27 July 2005.

10 Police received a call at Bathurst Police Station at about 12.46 pm on 28 July 2005. When they arrived at about 12.49 pm, two ambulances were parked outside the premises which comprised a fibro clad semi-detached house.

11 Police found the front door locked and heard a female voice talking and sobbing coming from inside the house. They noticed someone on it under a blanket and heard the sound of crying coming from the area of the bed.

(3) FACTS

12 The Crown case was that the accused and her children arrived at the home of Howard Dennis on 27 July 2005 with her young daughter and baby.

13 After she arrived, she was noted to be behaving in a bizarre manner which Howard Dennis described as her being “schizo”.

14 On the morning of 28 July 2005, the accused was still exhibiting bizarre behaviour. At some point in the morning after the baby went to sleep, Howard and Patrick Dennis left the house to go to the shopping centre at Kelso.

15 The evidence is uncertain as to when they left and how long they were absent from the house.

16 It is clear that when they left, the only adult in the house was the accused.

17 The evidence would tend to indicate that they were absent from the house for up to about one and a half hours. On returning to the home, Howard Dennis knocked on the door and heard the accused calling out “who is it?”. He opened the doors with his keys, and on entering the house, noted that taps were running and there was water all over the floor. After going to the kitchen, he then went to the bathroom and saw the baby in the bathtub which had water in it. He said he grabbed the baby and took him out to the lounge room and the accused then took the baby from him. He said he was shocked and rang the emergency 000 number.

18 When interviewed by police on 28 July 2005, Howard Dennis said when he saw the baby in the bathtub that the skin was “real loose and pale”. When asked which way the head of the baby was facing in the bath, he said “Straight into the sink” (Q.389). He said there was no plug in the sink hole and that the baby’s head went down to the sink.

19 A number of photographs of the house were taken by police and, in particular, of the bathroom, the bath and the sink (photographs 42 to 44, Tab 2, Exhibit A).

20 The facts relied upon by the Crown in this respect, which it contended established beyond reasonable doubt that the death of the child was caused by the actions of the accused, included the following:-

(1) That, at the time of his death, the child was only five weeks of age.

(2) The evidence that when Howard and Patrick Dennis left the premises the child was, at that point, seen alive.

(3) That the four year old girl who was present was physically incapable of lifting the child into the bathtub, a matter that was not disputed.

(4) That the only adult person in the premises after the departure of Howard and Patrick Dennis was the accused.

(5) That when Howard Dennis left the premises, the taps over the bath were not running.

(6) When Ms Cronin from the Bathurst Community Health Centre attended the premises shortly after 10.40 am on 28 July 2005, she knocked on the door. There was no answer. She could hear water running inside the house. She knocked again, harder than the first time and she heard what she described as an “unfriendly female voice” inside the house ask “Who is it?”.

(7) The evidence of Howard Dennis that, when he returned to the house and entered the bathroom, he saw the baby facing down in the bath near the plughole, the water still running.

(8) The evidence as to three telephone calls being made to the premises from a phone box in Kelso by Howard Dennis between 11.04.22 am and 11.39.13 am on 28 July 2005.

(9) The evidence of Howard Dennis was that he spoke to the accused who said “... sorry you have to come home”. She then hung up. Mr Dennis said he knew “something was going on”.

(10) The fact that child had no visible signs of injury.

(11) That, on post-mortem:-

(a) no external injuries were observed;

(b) the lungs were rather congested and airless;

(c) cause of death could not be determined, but that the post-mortem examination could and did not exclude drowning.

(4) THE MATTERS RELIED UPON BY THE ACCUSED

21 The case for the accused raised two alternative grounds. First, that the Crown had failed to discharge the onus upon it to prove beyond reasonable doubt that the death of the victim was caused by an act or omission of the accused. In this respect, it was contended that the Crown had not excluded as a reasonable inference said to have been open on the evidence that the infant death was the result of supervening circumstances such as Sudden Infant Death Syndrome (SIDS) or accidental circumstances including suffocation.

22 Second, and in the alternative, that the accused had a defence of mental illness.

(5) MEDICAL EVIDENCE

23 In undertaking a medical assessment in a case such as the present, the examining medical expert looks to establishing the accused’s medical history being one that is truthful and accurate. Doctors normally seek corroboration of the history or aspects of it, as for example, complaints to others of visual and auditory hallucinations. I turn to the medical evidence in this case.

(a) Professor Greenberg

24 The accused’s personal and family history as recorded in the reports of Professor Greenberg and Dr Westmore indicates that she had a turbulent and, at times, a violent family background. The history includes episodes of sexual abuse and the use of illicit substances from her teenage years including intravenous amphetamines and heroin amongst other substances. By the age of 24 years she reported having four children all of which were removed by the Department of Community Affairs as she was unable to care for them.

25 Before the birth of her son, Zane, it is reported that she had episodes of drug induced psychosis and withdrawal seizures from illicit substances. During her adolescence, she was reviewed by a psychiatrist in Bathurst who reportedly diagnosed her with depression and post-traumatic stress disorder secondary to a history of abuse. Professor Greenberg stated that because of the accused’s chronic and persistent use of illicit substances, she would qualify for the diagnosis of polysubstance abuse/dependence and that she probably had episodes of drug-induced psychosis.

26 On clinical assessment and review of documentation sent to him, Professor Greenberg was of the opinion that at the time of the incident the accused was suffering from drug-induced psychosis. He considered her to be a woman of limited intelligence and, at the time of the alleged offence, she was suffering from a psychotic mental illness, namely, a disease of the mind precipitated by the voluntary use of intravenous amphetamines and smoking cannabis. He considered that the psychotic illness continued over several days after the alleged offence.

27 Professor Greenberg also considered that the accused probably had a defect of reason at that the time of the events on 28 July 2005. On the information before him he was of the view that the accused did not know the nature and quality of her actions at the abovementioned time due to her disease of the mind and subsequent defect of reason. He was of the opinion that she probably had a defence of mental illness.

28 Professor Greenberg gave evidence on 4 February 2010. He stated that a person taking amphetamines would have all the symptoms of intoxication (hyperactivity):-

“But they don’t’ usually have hallucinations, delusions and certainly they would not last three, four, five, 10 days. They would usually resolve within 12-24 hours ... but the duration and intensity of the symptoms continuing for a period of time obviously in a facility where she is not continuing to use the substances would suggest a chemical illness, namely, a psychosis even though it is drug induced in this case.”

29 Professor Greenberg, however, stated that he was not completely sure whether the accused had an underlying functional illness such as schizophrenia. In cross-examination, he agreed that, as to reported accounts by the accused of events concerning her son, he could not rely on the accused’s accounts, given that she was psychotic at the time and the prescribed medication would have affected her memory. These may also have resulted in a confused memory. He also agreed that her psychotic state would have interfered with her ability to interpret reality and, in particular, the condition of her child. Psychosis, he said, certainly will interfere in rational thinking.

(b) Dr Bruce Westmore

30 Dr Westmore examined the accused on 11 March 2009. In addition to information elicited at the clinical interview, he also relied upon documents sent to him relating to the accused.

31 Dr Westmore made a differential diagnosis, namely, a drug induced psychosis or “a primary process illness” such as schizophrenia which had been aggravated or precipitated by the use of illicit drugs.

32 The question as to whether the accused suffered from a drug induced psychosis or whether she had an underlying genetic or other condition that was precipitated or aggravated by a drug psychosis is a fundamental one in determining whether or not the accused has the basis for a defence in accordance with the M’Naghten Rules.

33 In a history taken from the accused, Dr Westmore obtained an account of the accused smoking cannabis at the age of 15 and later heroin, amphetamines and the drug known as “ice”. According to that history, she commenced using needles around the age of 17.

34 On mental state examination, Dr Westmore noted that the accused had a flat effect and he described “... a past and possibly current history of auditory perceptual disturbances although she did not appear to be responding to hallucinations during the assessment” (report p.5).

35 He stated that the accused would have been affected by the taking of illicit and prescription drugs. He was also of the view that, at the time of the alleged offence, the accused was acutely mental ill and her capacity to know or understand the wrongness of her actions, certainly from a moral perspective and perhaps from a legal perspective, were totally comprised by the presence of her mental illness. He added:-

“In summary, therefore, I am of the opinion that Ms Doolan was acutely mentally ill at the time her child died, she was suffering from a psychotic illness and that illness would have totally deprived her of the capacity to understand that she was not to do that act and ultimately that the act was wrong.”

36 Dr Westmore gave evidence on 4 February 2010 in the course of which he stated that the symptoms associated with a psychosis which was drug induced or a schizophrenic illness precipitated by illicit drug use were identical and that the pathological processes underlying the generation of symptoms in both conditions was identical. He stated that most drug induced psychoses were “short lived”. On the other hand, schizophrenia was a life long illness characterised by exacerbations and remissions. He added (transcript, p.105):-

“... If you have an underlying schizophrenic illness, or a vulnerability to develop schizophrenia, if you use illicit drugs you can precipitate an onset of the illness or aggravate a current illness.”

37 He considered that the sort of symptoms displayed by the accused from the date of the alleged offence, namely, inappropriate and bizarre behaviour, were psychotic in nature. He noted that similar symptoms had been recorded in relation to an examination when the accused was scheduled on 20 November 2001. Psychiatrists had examined her on 19 November 2001 and had noted her bizarre behaviour and she had expressed bizarre and paranoid delusions to security staff over several days. The relevant Justice Health records in relation to the latter occasion were tendered and became Exhibit 3. Dr Westmore expressed the opinion that the last-mentioned records confirmed psychotic symptoms going back to 2001.

38 In the normal course, he explained, such a patient is stabilised and that medication is reduced and eventually stopped. If the patient redeveloped psychotic symptoms without having re-used illicit drugs, then that would be a factor that confirms the diagnosis of schizophrenia. He said that most drug induced psychoses are transient, short-lived experiences. The longer a patient remains mentally ill after having taken drugs, the greater the index of suspicion that they have schizophrenia or an underlying vulnerability, a genetic vulnerability to that illness.

39 I note at this point that, in the accused’s case, the clinical observations over a period of weeks as referred to by Dr Westmore had not been undertaken.

40 Having regard to the earlier history in 2001, Dr Westmore stated that the clinical impression now (with her longitudinal history) would be that it was most likely that she had a schizophrenic illness which was aggravated or precipitated by illicit drugs. He was asked that if, in fact, there was no schizophrenic illness, but merely a vulnerability to drug induced psychosis, whether the mental illness defence was still available to her. He stated that he believed that it was in that the underlying pathology was the same, the chemical disturbance of the brain being identical whether it is schizophrenia or a drug induced psychosis.

41 Dr Westmore referred to the apparent slow recovery made over two or three months as consistent with an underlying genetic or constitutional vulnerability to schizophrenia rather than simply a drug induced psychosis. In a case of drug induced psychosis, the drugs would have disappeared at the earlier stage and slow recovery suggested vulnerability to schizophrenic illness.

42 In re-examination, Dr Westmore stated that persons with a genetic vulnerability seem to get worse each time they use illicit drugs. Accordingly, their chances of avoiding psychotic illness become less over time.

(c) Dr Martin Patfield

43 Dr Patfield, consultant psychiatrist, saw the accused during the period of her admission at Bloomfield Hospital between 29 July 2005 and 9 August 2005. The accused had been scheduled as an involuntary patient by Dr Marshall in Bathurst.

44 Dr Patfield said that the accused suffered from an acute psychotic illness during the period of her admission. He concluded that that illness had commenced before 28 July 2005. He said that her illness was characterised by hallucinations, delusions and irrational behaviour.

45 I found Dr Patfield’s evidence of particular assistance in this matter. He was taken to a report of Mr Peter G Champion, consulting clinical psychologist, dated 16 November 2001 (Exhibit 5). In that report it was stated that on the basis of the accused’s then current presentation, there was a significant possibility that she was suffering from a psychotic illness which, given the history, may have been related to drug taking.

46 More significantly, Dr Patfield was taken to the material which comprised Exhibit 3 and which relates to the period November 2001 in which a medical certificate was issued with respect to the accused pursuant to the Mental Health Act 1990 (Schedule 3). Dr Brown certified that on 19 November 2001, she considered that the accused was mentally ill within the meaning of the Mental Health Act and noted the accused’s then bizarre behaviour. On the basis of that certificate and Mr Champion’s examination of the accused on 14 November 2001, the accused’s mental illness had extended over a period of approximately five days.

47 Other records indicated that she required ongoing anti-psychotic medication on an ongoing basis through to 22 November 2001.

48 Dr Patfield, in relation to this past history, observed (transcript, 8 February 2010, p.132 to p.133):-

“... What it tells me is she has quite likely been acutely psychotic since 4 November and it’s continued over those number ... of days until 19 and she, it seems, at least (was) psychotic ... So all of that is typical for an acute psychosis ...”

49 Dr Patfield accepted that the evidence indicated that she probably was at that time acutely psychotic over a period of three to four weeks after which it started to settle with treatment.

50 It is clear on that history that the applicant’s mental illness at that time was not merely a drug induced psychosis. It was Dr Patfield’s evidence that a person who becomes intoxicated with amphetamines and who becomes psychotic usually resolve over a period of one to three days. Accordingly, the history of the accused’s illness in 2001 went beyond that period and suggested that her condition was other than transitory.

51 Dr Patfield agreed that the history to which I have referred indicated that the accused then suffered from a significant mental illness. Ms Wells put to him (transcript, 8 February, p.134):-

“It is quite a different thing to compare to say a two or three day drug psychosis, or a psychosis induced by drug use that just goes away without treatment and so in, this is much more significant in terms of a mental illness? A. Yes.

Q. And bearing in mind that this incident and later history about which you know from your own observations in 2005 and the subsequent recurrence of her illness. Does that not indicate to you a vulnerability to psychosis of some kind? A. Yes.

Q. Triggered by something, we know not what precisely? A. Absolutely.”

52 The fact that the accused was scheduled for a two week period in 2007 with severe disturbances of mood and having been noted as unpredictable, irritable and hostile, in Dr Patfield’s opinion was evidence of a further episode of severe psychosis. He agreed, taking into account both the pre-2005 and post-2005 medical history, that the accused had a vulnerability to developing a psychosis. Vulnerability to psychotic episodes, he stated, could arise from schizophrenia or from amphetamine use. Some people, he explained, are particularly sensitive to the psychogenic effects of amphetamines whilst others are quite resilient.

53 The accused’s developmental history, which included many years of abuse, neglect and chaos, according to Dr Patfield, constitute circumstances that give rise to instability. Persons with a background of that kind are more likely to become psychotic.

54 Dr Patfield said that an additional factor in the accused’s case concerned the fact that her former partner was due to be released from prison and on the history a good deal of her thinking around the time of the alleged offence centred on that fact. Dr Patfield considered that that matter had given rise to a fear in the accused about his release. Episodes of illness with people with schizophrenia, he said, are often related to emotional stress. He said in evidence (transcript, p.143):-

“... I suspect personally that it was the coalescence of a number of factors, the taking of speed, the terrifying fear of her de facto being released, she was at a period of ... dislocation, not having ... housing (and) ... although that was common to her, it was a particularly stressful time for her and I suspected all of these things coming together meant that with this use of speed, she became frankly psychotic.”

55 He considered that such factors, quite apart from amphetamine use, indicated that there was a vulnerability in the accused to psychosis. I will return to the medical evidence, as necessary, depending upon the conclusion as to causation.

(6) EVIDENCE OF CAUSATION

56 It is necessary to consider the Crown case on causation. Depending upon the finding made in that respect, I will, as I have indicated, as necessary, deal with the defence of mental illness.

57 Professor Peter Ellis, Regional Forensic Pathologist, gave evidence as to the following matters:-

(1) That he had conducted a post-mortem examination on the body of the deceased.

(2) That he had prepared the report dated 23 November 2005 which accurately set out his findings.

(3) That most children the age of the deceased would have had difficulty in rolling over by itself. That is relevant to the position of the baby once placed in the water in the bathtub if that is what the evidence establishes.

(4) That the absence of physical findings or observations pointing to the cause of death meant, in practical terms, that one was required to look to the circumstances surrounding death, that is to say, the situation in which death appears to have occurred.

(5) The fact that the lungs of the deceased did not appear to have an increased quantity of fluid was not particularly helpful as a significant number of infants and others who drown do not actually breathe water into the lungs.

(6) That the attempted resuscitation of the deceased by repeated compression of the chest and perhaps the abdomen, could expel some water that is breathed in.

(7) That there were no signs of bruising or bumps or of movement of the brain consistent with the baby having been dropped into a ceramic bath.

58 In cross-examination, Professor Ellis stated:-

(1) That in a case where there are no positive findings, a number of medical and other conditions may relate to death. These included:-

• Abnormalities of the heart.

• Some metabolic abnormalities.

• Suffocation.

(2) In relation to SIDS, he stated that, in order for the syndrome to be a possible cause of death, it would require that the death occurred whilst the infant was sleeping and to die suddenly during sleep.

(3) Accordingly, the circumstances surrounding death were paramount in cases where there are no positive findings.

59 Professor Roger Byard prepared a report dated 1 July 2007 on the possible causes of death in this case. He, inter alia, is Consultant Paediatric Forensic Pathologist to the Child Protection Unit at the Women’s and Children’s Hospital, Adelaide.

60 He concluded that, in the present case, there were no signs of wrinkling of the skin or frothy fluid in the airways or wetness of the lungs at autopsy. In other words, there were no findings at autopsy to support the diagnosis of drowning. Professor Byard then added (at pp.5 - 6):-

“... However, given the difficulties in establishing a diagnosis of drowning that I have outlined above, the autopsy findings certainly do not exclude this diagnosis. I would therefore, agree with Dr Ellis that if the alleged history of being found ‘lifeless in a bath full of water’ is correct, then the cause of death is most appropriately left as ‘Undetermined, consistent with drowning’. However, it is not possible from the pathology to determine whether such an event was accidental or inflicted, or how he came to be in the bath. Similarly it is not possible from the pathology and information provided to exclude prior suffocation, with the body then placed in the bath to simulate drowning. Finally, there was no evidence of underlying organic disease or other injuries that could have caused or contributed to death and toxicological studies were unremarkable. Examination of histology slides did not reveal any additional significant information.”

61 In cross-examination, Ms Wells, on behalf of the accused, raised a number of matters concerning the possibility of SIDS being the cause of death in the present case.

62 He was asked, leaving to one side the circumstance in the present case of drowning, the child having been found face down in the water, as to what other possible causes of death may exist where there was no sign of injury or any other physical detriment. Professor Byard replied that there were a number of different disorders that may present in that way. SIDS, he stated, presented with no pathological findings.

63 Professor Byard had been a medical advisor to the organisation known as SIDS and Kids since 1991. That organisation was started by parents who had lost children to SIDS. He had given evidence in relation to five cases of death of children in South Australia whilst sleeping with a parent or grandparent (referred to as “co-sleeping”).

64 He agreed with the statement that babies were most at risk of SIDS or sleeping accidents when co-sleeping and being infants who are less than four months old and babies who are born early, premature or small. Additionally, that there is a very high risk of infant death and sleeping accidents where the baby shares a sofa or couch with an adult during sleep.

65 He also agreed that sleeping with a person who is a smoker is a SIDS risk factor, although the reason is not exactly known. He stated that there were increased risks of respiratory infections and asthma in children exposed to cigarette smoke. The extent of the risk varied with the extent of exposure.

66 Professor Byard also identified other risk factors in relation to SIDS deaths. These included:-

• Where there was adult bedding, quilts, doonas or pillows that might cover the baby.

• The possibility of suffocation resulting from babies that re-breathe exhaled air.

• Where a baby is wedged between a wall and a bed.

• Where a parent is affected by alcohol or drugs that cause sedation.

67 Professsor Byard agreed that male infants were one and a half times more likely to die from SIDS than female infants and that the most at risk age groups are infants aged one to three months. He also agreed that Indigenous families have a much higher incidence of unexpected infant death, whether due to SIDS, infections or other problems.

(7) THE CAUSATION ISSUE

(a) Crown submissions

68 The primary basis of the Crown case was that the child died by drowning after it was placed into the bath by the accused and that, at that time, it was face down with water running into the bath.

69 In his opening address, the Crown Prosecutor stated that the accused intended the child would drown, albeit, it may have been in accordance with instructions given to her by the child and the Lord, as she saw it.

70 Alternatively, the Crown stated that, if I were to accept the version that she dropped the live child into the bath and left it lying face down, the child being five weeks of age, she must have been aware that if she did nothing the child would probably die and, therefore, she would be guilty of murder by reckless indifference by omission.

71 In his final submissions, the Crown Prosecutor stated that the Court could find beyond reasonable doubt that the deceased died as a result of the deliberate act of the accused on either one of two bases:-

(1) On the basis of evidence as to statements made by the accused to various persons after the events of 28 July 2005 including the period she spent in Bloomfield Hospital. If the Court were to determine that the accused was speaking the truth on particular occasions, then the finding as to causation could be made on the basis of the accused’s admissions.

(2) Alternatively, the Crown relied upon circumstantial evidence and, in that respect, the Crown relied upon the matters set out in a document which summarised aspects of the evidence that the Crown contended established causation. The Crown Prosecutor additionally submitted that the statements made by the accused to others could themselves form part of the circumstantial evidence.

(b) The submissions for the accused

72 It was submitted for the accused that there was available a reasonable hypothesis consistent with innocence said to be based on one of three possible causes of death:-

(1) The evidence that the deceased child’s death occurred before his body was placed in the bath and that the cause and place of death is unknown.

(2) That it was equally open to find that, rather than drowning the baby, the accused was trying to revive him. This submission was based on evidence raised in her admissions to police. Accordingly, it was contended that this was a possible explanation, not pure speculation.

(3) Evidence which pointed to possible causes of death that may arise in the absence of signs or symptoms. The first was suffocation. The second was SIDS. There was a degree of overlap between suffocation and SIDS.

73 Reliance was placed upon the fact that the medical pathological evidence did not exclude any particular cause or place of death, the cause of death not being able to be determined by Professor Ellis, but merely it being consistent with drowning. Ms Wells submitted that the statement that death was consistent with drowning was based on the history that the baby was found lying down in a bath full of water.

74 It was submitted that neither the medical evidence nor the circumstantial evidence could establish whether or not the baby was alive at the time that he was placed in the bath.

(c) Principles

75 When the case against an accused person rests substantially upon circumstantial evidence, a jury cannot return a verdict of guilty unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”: Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 634.

76 To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that the accused’s guilt should be a rational inference but that it should be “the only rational inference that the circumstances would enable them to draw”: Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, 252; Barca v The Queen [1975] HCA 42; [1975] 133 CLR 82, 104 per Gibbs, Stephen and Mason JJ.

77 In Barca (supra) it was also observed:-

“However, an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding a prisoner guilty, if the inference of guilt is the only one open to reasonable men upon a consideration of all the facts in evidence”: Peacock (supra) at 661.

78 Although a jury cannot be asked to engage in groundless speculation, it is not incumbent on the defence either to establish that some other inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If a jury think that the evidence as a whole is susceptible to a reasonable explanation other than that the accused committed the crime, then the accused is entitled to be acquitted: Barca (supra) at 105.

79 A circumstantial case depends upon two conditions having been met. First, the primary facts from which the inference of guilt is to be drawn must be proved beyond reasonable doubt. Secondly, the inference of guilt must be the only inference, which is reasonably open on all the primary facts which a jury find or, in a case such as this, the judge.

80 The circumstances which may be taken into account in the process of reasoning involved in a circumstantial evidence case include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. This would include circumstances whose relation to the fact in issue consist in the probability or increased probability judged rationally upon common experience, that would not be unless the fact to be proved also existed: Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 375 per Dixon J.

81 It was submitted on behalf of the accused that the evidence adduced by the Crown failed to negative an hypothesis which was consistent with innocence.

(d) Facts established in the Crown case

82 In relation to the Crown case, the following matters were required to be established beyond reasonable doubt:-

(1) The death of the child (which was common ground).

(2) Whether or not the death of the child was caused by the actions of the accused by drowning him in the bath or placing him in the bath in a way that would cause him to drown.

(3) That, at the relevant time, the accused had an intention to kill the child or to inflict grievous bodily harm (in relation to which the accused, in this case, raises a defence of mental illness).

83 On the issue of causation (element (2) above), as earlier indicated, the Crown relied upon circumstantial evidence to prove that the accused caused the death of the baby by placing him in the bath with a sufficient amount of water to occasion drowning.

84 The Crown submitted that:-

(1) On the evidence, the only way the child could have got into the bathtub was for him to have been placed there by the accused.

(2) The position in which the child was found was established and was as stated in the evidence of Mr Howard Dennis.

(3) That a child of five weeks would not be able to roll itself over.

(4) There was no evidence that the child had ever been found either asleep or not breathing, a fact said to be relevant to any possibility of the child having died from SIDS or otherwise.

85 In support of the submission that there was available a reasonable hypothesis consistent with innocence which was not negatived to the required standard by the Crown case, Ms Wells relied upon the following:-

(1) That there was “some evidence” that the deceased child’s death occurred before his body was placed in the bath and that the cause of death and place of death other than it being somewhere in the house was unknown. In this respect, it was contended for the accused that it was equally open to find that, rather than drowning the baby, the accused was, in fact, trying to revive him. This was said to be based on evidence raised in “admissions” made by the accused to police and was not pure speculation. It was based on statements said to have been made by the accused herself.

(2) The medical pathological evidence did not include either the cause of death or place of death and the post-mortem finding was that the cause of death could not be determined but simply was consistent with drowning. The proposition that death was consistent with drowning was said to be based on the history that the baby was found lying down in a bath full of water. There was no affirmative finding to support the conclusion as to drowning, nor was there any evidence of any physical defect or any toxicological result that would exclude drowning.

(3) Neither the medical evidence nor the other circumstantial evidence relied upon by the Crown, in particular, the finding of the baby could establish whether or not the baby was alive at the time that it was placed in the bath.

(4) On the evidence, including in particular, the evidence of the pathologist, it was necessary for the Court to consider whether there were other causes of death other than by drowning in a case where there was no physical or toxicological signs or symptoms.

(5) The evidence of Professor Ellis and Professor Byard established that there were a range of alternative causes of death, being causes of death that may arise in the absence of symptoms. These were said to include:-

(a) death by suffocation;

(b) SIDS.

86 Ms Wells properly conceded that Professor Ellis had said in evidence that SIDS, though a possibility, qualified his evidence by adding that there would need to be evidence that the child was found in circumstances which indicated that he had died during sleep.

87 Ms Wells, in support of the possibility that the deceased’s death was related to SIDS, identified the risk factors said to be established in evidence. These included:-

(1) Co-sleeping with parents of siblings as related to the risk of SIDS or accidental suffocation.

(2) The type of sleeping surface.

(3) Smoking during pregnancy.

(4) Smoking in the presence of the child.

(5) That the incidents of risk are associated with winter months.

88 It was contended that each of the risk factors identified in the evidence were, on the evidence, applicable to the circumstances of the present case.

(e) The accused’s statements

89 The accused’s statement, when interviewed by police, that the child was already dead before she dropped him into the bath is to be assessed in relation to each of the interviews she gave and account taken of the varying versions and the medical evidence which indicated that her medical condition would render her unable to provide a consistent sequential account of events.

90 The accused was interviewed on four occasions during which she was asked to give her version of what happened. The following deals with each interview.

(i) Interview on 28 July 2005

91 The accused stated (question 24) “... he said, you’ll need to put me under water, you’ll drown me in it ...”. She said that the Lord said to her “I need to smother me in the water”. In relation to question 32, she said “He’s in the bath, I rushed him off the bed”. She said that she was not able to say what had happened.

(ii) Interview on 9 August 2005

92 In the interview on 9 August 2005, the accused gave the following responses to questions:-

A33 “It’s just, it’s an, like an accidental death ...”

A34 “‘Cause I know me daughter caused it all.”

A36 “She accidentally tipped his pram over and it’s really high.”

(iii) Interview in Cowra on 23 November 2005

93 In the interview on 23 November 2005, the accused stated (p.40):-

“... by the time I came back in my son was screaming on the floor ‘cause Elizabeth tipped the pram over. I picked up son ... and I run with son ‘cause he was holding his breath ‘cause Elizabeth accidentally tipped him out of the pram ... I panicked and I’m trying to blow in his face and trying to make him come to ‘cause he was holding his breath and there was nothing I could do, so I ran, when I ran into bathroom, I had him like that. When I ran I slipped ... but I dropped son as well and that’s how it, it come to son having knock on his head to ‘cause I fell.”

94 In answer to question 42, she said that the baby ended up in the bathtub.

95 At p.43 she said, “in the bathtub, his head hit, his head went up near the plughole ... I was too frightened to even grab him back out of there ...”.

96 In the interview (p.44), the accused stated that, after the baby fell from the pram, he was “... blue around the lips ... holdin’ his breath, like, holdin’, making a noise but not breathing”.

97 She stated that before running to the bathroom, the baby was screaming (p.54). At p.55, she said that, after he fell out of the pram, the baby was “winded”.

98 She stated (p.57) that she panicked and did not want to pick him up “‘cause I dropped him”. She said she did not check him after she dropped him and that “... I was too frightened to pick him up again”.

99 The accused stated (p.64) that she did not know whether “... I knocked him out or what when I dropped him. I, I panicked and I didn’t know what to do”. She was asked whether she checked to see whether he was breathing. The accused replied “yeah, he was breathin’, that’s why I didn’t have the shower facing him”. She repeated that the child was breathing and she determined this because “... I could see his chest still moving, you know”.

(iv) Interview on 19 December 2007

100 The applicant said:-

A9 “I said I dropped my son ...” (see similar answer to question 20).

A11 “That’s when I dropped him, he was already dead.”

Q16 “So what makes you think, he was deceased at the time?”

A16 “Um, well I well. I know that I was knocked out ...”

A23 “I went to pick him up out of the bath.”

A48 “I dropped him because he was dead.”

A51 “Well, I know he wasn’t breathing, that’s why I dropped him, because he was blue.”

101 It was put to the accused at this point in the interview that she had previously said to police in Cowra that the baby was breathing. She answered “no”.

(f) Evidence as to the accused’s reliability as a historian

102 Professor Greenberg was of the opinion that the accused would have difficulty with remembering what occurred about the events leading to her baby’s death partly by reason of having been treated with anti-psychotic medication. Such medication, he said, affects the mind.

103 In his report of 1 August 2009, having seen the accused on 29 June and 5 July 2009, Professor Greenberg said that the accused was, in his view, an unreliable historian. He also agreed, when it was put to him by Ms Wells, that her psychotic condition and state of intoxication on 28 July 2005 was such that her condition would have interfered with her ability to interpret reality, including the actual condition of the baby on 28 July 2005.

104 Dr Westmore’s evidence as to the accused’s reliability was consistent with that of Professor Greenberg. Dr Westmore said in oral evidence that it was likely that the accused had no recollection of what occurred in relation to the death of her son. He would, however, have expected that she would have “some patchy memory” and that “the memories are likely to be confused”. He said that he thought her memory of events would be “scrambled”. He thought that the accused was an unreliable historian in relation to the events of 28 July 2005 and that “she may have false memories about what occurred ...” (transcript, p.116).

(8) FACTS ESTABLISHED

105 The following facts were established beyond reasonable doubt:-

(1) The only adult person in the house in the two hour period prior to 12.00 pm or thereabouts on 28 July 2005 was the accused.

(2) When Patrick and Howard Dennis left the premises on the morning of 28 July 2005:-

(a) the baby was alive and in apparent good health;

(b) went to sleep on the bed in the lounge room just prior to Patrick and Howard Dennis leaving the premises that morning;

(c) the accused was awake at that time and still stimulated by amphetamines when Patrick and Howard Dennis left the premises;

(d) the accused had been consistently acting in a bizarre fashion on 27 and 28 July 2005 and on 28 July she was demonstrating an irrational state of mind;

(e) when Patrick and Howard Dennis returned to the house, the accused was awake.

(3) The baby was found by Howard Dennis face down in the water in the bath as he described.

(4) The baby was placed in the water in the bath by the accused.

(5) The taps were not running when Patrick and Howard Dennis left the premises. The accused was the person who turned the taps on in the bath.

(6) There was no direct evidence to suggest that the baby was dead before being placed in the bathwater.

(7) It is likely that the child was dead by 10.40 am, that is, about 90 minutes at most from when Patrick and Howard Dennis left the premises.

(9) CONCLUSIONS ON CAUSATION

106 It is clear, on the evidence, that the issue of causation cannot be determined on the basis of statements made by the accused after the events of 28 July 2005, given the evidence that little or no reliability can be placed upon them.

107 The medical evidence being that there was no physical sign at autopsy, in those circumstances, it is necessary for the Court to consider whether the evidence leaves open a rational basis for an hypothesis that there were other possible causes of death other than drowning.

108 Insofar as particular statements made by the accused might be taken as some evidence that the deceased was dead prior to him being placed or dropped into the bath, for reasons disclosed by the medical evidence to which I have referred, such statements cannot be regarded as, in any way, cogent evidence, and there is no other evidence to support the proposition, as an alternative hypothesis, that the child may have been or was dead prior to it being placed or dropped into the bath.

109 As to the alternative hypothesis relied upon on behalf of the accused, namely, that the evidence admits, as a rational inference, the possibility that the child died by circumstances of suffocation or SIDS or both, there is no evidence of any cogency, in my opinion, that would support that the child died whilst asleep in any such circumstances.

110 The evidence of Professor Byard and Dr Ellis clearly articulated risk factors that have been correlated or associated with infant death arising from that syndrome. The medical research has not established the extent of risk that arises from the existence of one or more or a combination of risk factors. Whilst risk factors may exist, it is clear, from the evidence, that it is by no means the case that such factors materialise merely by their presence or existence. In particular, in the present case, neither Dr Ellis nor Professor Byard were prepared to venture an opinion as to the likelihood or otherwise of death by the deceased through suffocation or SIDS.

111 I have earlier referred to the principles to be applied in determining a circumstantial evidence case and those principles, of course, are applicable on the issue of causation that has been raised in the present case. I have concluded, for reasons I have stated, that the proposition that the child may have died from suffocation or SIDS cannot be said to be any more than speculation. Accordingly, for reasons elsewhere stated, I consider that the Crown case establishes, beyond reasonable doubt, that the death of the child resulted from the acts of the accused.

(10) THE DEFENCE OF MENTAL ILLNESS: COMMON LAW PRINCIPLES

112 I turn now to consider the defence of mental illness.

113 (omitted)There is no reliable evidence that supports the proposition that the accused’s baby was dead before he was placed or dropped in the bathtub.

114 (omitted)The account given by the deceased to police on 23 November 2005 does not constitute reliable evidence. It is not supported by and, indeed, is in material respects, in conflict with her earlier statements. Additionally, the medical evidence, including, in particular, that of Professor Greenberg and Dr Westmore, establishes plainly enough that the accused is to be regarded as an unreliable historian.

115 (omitted)I am, accordingly, of the opinion that there is no evidence that supports a rationale hypothesis that the child could have died prior to and from causes other than by drowning in the bathtub in which he was found with the head submerged in the manner described in evidence by Howard Dennis.

116 The meaning of the terms by which mental illness is defined at law is a question of law not a question to be answered by medical witnesses: The Queen v Falconer [1990] HCA 49; (1990) 171 CLR 30, 49 per Mason CJ, Brennan and McHugh JJ.

117 Generally speaking, in the area of mental illness relevant judgments make a distinction between an underlying mental infirmity which is productive of one of the prescribed effects and a transient non-recurrent mental malfunction caused by external forces which produces an incapacity to control actions.

118 The former is treated as unsoundness of mind or insanity. The latter is no more than a variation within the norm: Falconer (supra) at 49.

119 The dichotomy between mental illness and a healthy mind is discussed by King CJ in Regina v Radford (1985) 42 SASR 266 at 274 to 278 was adopted by the High Court in Falconer (supra) at 54. In Radford (supra), King CJ’s discussion of mental illness included the following points:-

(1) The terms “disorder” and “disturbance” of the mind is used by Dixon J in his charge in Regina v Porter [1933] HCA 1; (1936) 55 CLR 182 at 188 must take their colour from the word “disease” and refer to disorder and disturbance of the mental faculties which can be characterised as mental illness.

(2) A temporary disorder or disturbance of an otherwise healthy mind caused by external factors cannot properly be regarded as disease of the mind as that expression is used in the M’Naghten Rules.

(3) The major mental diseases or psychoses such as schizophrenia are clearly diseases of the mind.

(4) According to the view of Lord Denning in Bratty v Attorney-General (Northern Ireland) [1963] AC 386 at 412, any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind.

(5) Disease of the mind is to be distinguished from “mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control and impulsiveness”: Porter (supra) at 188.

(6) The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called “defect of reason” in M’Naghten Rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to an extraordinary external stimuli.

120 A malfunction of the mind which is prone to recur reveals an underlying pathological infirmity.

121 There is a significant distinction between the reaction of an unsound mind to its own delusions or to external stimuli on the one hand and the reaction of a sound mind to external stimuli on the other: Radford (supra) at 276 per King CJ.

122 In general terms, a recurring state which involves some abnormality will indicate a mind which is diseased or infirm, but the fundamental distinction is necessarily between those mental states which, although resulting in abnormal behaviour, are or may be experienced by normal persons and those which are never experienced by or encountered in normal persons: Falconer (supra) at 85 per Gaudron J.

123 In Radford (supra), King CJ distinguished between “an underlying pathological infirmity of the mind ... which can be properly termed mental illness” and “the reaction of a healthy mind to extraordinary stimuli”.

124 In Regina v Quick [1973] EWCA Crim 1; [1973] 1 QB 910, Lawton LJ stated (at 922) that the fundamental concept is of a malfunctioning of the mind caused by disease:-

“A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease. Such malfunctioning, unlike that caused by a defect of reason from disease of the mind, will not always relieve an accused from criminal responsibility. A self-induced incapacity will not excuse (Regina v Lipman [1970] 1 QB 152), nor will one which could have been reasonably foreseen as a result of either doing or omitting to do something, as for example, taking alcohol against medical advice after using certain prescribed drugs ... From time to time difficult border causes are likely to arise. When they do, the test suggested by the New Zealand Court of Appeal in Regina v Cottle [1958] NZLR 999, 1011 is likely to give the correct result, viz, can the mental condition be fairly regarded as amounting to or producing a defect of reason from disease of the mind?”

125 In Quick (supra), it was held that the accused’s mental state, if it ever existed, was not caused by his diabetes but by his use of the insulin prescribed by his doctor. Such malfunctioning of his mind as there was, was caused by an external factor and not by a bodily disorder in the nature of a disease which disturbed the working of his mind. It was held that the accused, in those circumstances, was entitled to have his defence of automatism left to the jury.

126 In Regina v Meddings [1966] VicRp 42; (1966) VR 306, the accused suffered from epilepsy, a disease of the mind. He was a heavy drinker of alcohol. After drinking, without provocation, he shot his best friend several times causing him severe injuries.

127 Scholl J referred to Bratty (supra) in which there was evidence that the accused was suffering from psychomotor epilepsy. Scholl J considered that a point of significance in Bratty was Lord Denning’s identification of the potentiality of repetition as something which he regarded as important when dealing with the state of mental organs which were disordered and as to which the question arose whether it fell within the M’Naghten Rules.

128 Scholl J took the reference in Bratty (supra) to the phrase “prone to occur” as referring to the possibility of recurrence as a material factor. Scholl J added (at 309):-

“... Now that is what I myself in Carter’s case (supra) had ventured to think might be regarded as the discrimen between cases of irrational behaviour due to some transient cause affecting the mind, other than disease of the mind, and cases of irrational behaviour due to defective reason for disease of the mind ...”

129 A little later, Scholl J continued:-

“... I think the question for me is whether the evidence indicates that there is, if Dr Bartholomew’s view is accepted, the element present of potential repetition of attack of the kind made by the accused man on 26 December last. I find that the element of potential repetition was regarded as relevant by Lord Denning. It was the discrimen which I sought to apply in Carter’s case ...”

130 His Honour found that the evidence indicated the element of potential repetition. The medical evidence was to the effect that the epileptic fit had been triggered by the consumption of alcohol. The evidence was to the effect that, if the accused in that case had “a potential susceptibility to epileptic attacks”, such attacks could be triggered by various sets of circumstances or drugs such as alcohol. Scholl J concluded:-

“... If a man is liable to an epileptic attack by reason of a predisposition whether resulting from injury or some idiopathic cause, then I think it can properly be said he has a disease of the mind ... There is a predisposition to, with the potentiability of repetition of, violent outbursts and whether the trigger is alcohol or whether it is surrounding circumstances, whether it is a provocative word or some object which arouses recollection or emotion, does not seem to me to matter. If, in such circumstances, there is induced an epileptic fit as a result of which automatism supervenes, then I think` it can properly be said, and ought properly to be said, that it is the result of a disease of the mind within the M’Naghten Rules. The case seems to me quite different from the case of the ordinary individual who takes too much drink and then acts, it may be, without true volition ...”

131 Finally, in Regina v Jennings [2005] NSWSC 789, Kirby J observed:-

“30 There will be an abnormality of mind, for the purposes of this defence, where an accused's capacity to understand events or judge whether his actions were right or wrong or control himself, deviates from what may be regarded as normal, given that there is variation in the different ways in which people function. However, the abnormality of mind must arise from an underlying mental or physiological condition. It is not enough if the accused's inability is merely transitory, although it does not have to be a permanent condition.

31 I should, in this context, say something about the relevance of drugs and alcohol. If a person were to become psychotic by reason of drugs or alcohol, and kill someone while so affected, the partial defence would ordinarily not be available, and that because the effects of the self induced intoxication would ordinarily be short lived. The action of killing someone, while so affected, would ordinarily not be the consequence of an abnormality of mind arising from an underlying condition. Rather, on that example, the effects of the alcohol and drugs, which induced the killing, would be transitory.

32 On the other hand, as explained by the medical evidence given in this case, drugs or alcohol may, in certain individuals, trigger an abnormality of mind, that is, bring about some physiological or mental change which is not transitory, but remains even when the effects of the drugs or alcohol have worn off. The partial defence of substantial impairment may, in that circumstance, be open, or indeed, the M'Naghten defence may be available if the impairment were total.”

(11) CONCLUSIONS ON THE DEFENCE OF MENTAL ILLNESS

132 The voluntary ingestion of prohibited drugs, including amphetamines, in itself provides no excuse or justification for unlawful or criminal conduct which is carried out under the influence of such drugs.

133 In the present case, it has been necessary to give close consideration, in particular, to the medical evidence in order to determine whether or not, on 28 July 2005, the accused acted by reason of the effects of an underlying condition resulting in a mental illness at the time she killed the deceased and to separately evaluate the effects of the ingestion of amphetamines.

134 It is clear on the evidence that the accused was affected by the ingestion of prohibited drugs in the hours before and leading up to the death of the deceased. However, on the medical evidence, it is also clear that, at least since 2001, the accused has suffered a number of episodes of drug induced psychosis and that has given rise both to a vulnerability to further psychosis and, as well, an underlying condition independent of the effects of her drug taking on and before 28 July 2005.

135 The medical evidence does, accordingly, establish that, at the time she killed the deceased, she suffered from an abnormality of mind by reason of mental illness. The abnormality of mind significantly impaired the accused’s perception of events and her ability to know right from wrong.

136 It is clear from the medical evidence that, leaving aside the effects that the drugs had upon the accused, she could not reason with a moderate degree of composure in the state that she was in on the day the deceased died.

137 The medical evidence, including in particular, that of Dr Patfield, does establish the underlying condition to which I have referred from which the accused suffered, quite apart from the effect of the drugs that she had taken, whether they would have affected her capacity to reason to a very marked extent.

138 Apart from evidence given by Professor Greenberg, the other medical evidence does not go so far as to establish that the accused did not have sufficient awareness of what she was doing when she placed the baby in the bath containing water. However, the medical opinion in this case uniformly establishes that on the probabilities, the accused did not know that what she was doing was wrong, in that she could not reason with a moderate degree of sense and composure that what she was doing was both legally and morally wrong.

139 I, accordingly, conclude that the accused has available to her a defence of mental illness, in that, at the time of causing the death of her child, she did not know that what she was doing was wrong in the sense to which I have referred.

(12) PRACTICAL AND LEGAL CONSEQUENCES OF A FINDING OF NOT-GUILTY BY REASON OF MENTAL ILLNESS

140 The legal and practical consequences of a finding that the accused is “not guilty on the ground of mental illness” may be shortly stated.

141 The statute which governs cases like this, the Mental Health (Forensic Provisions) Act 1990, requires me to make an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. In practice, this means not only that the accused remains in custody until a decision is made to release her, but also that she becomes what is known as a forensic patient and falls under the supervision of a body called the Mental Health Review Tribunal.

142 The Mental Health Review Tribunal consists of a president and his/her deputy, who must be a lawyer. It also consists of two other persons, one of whom must be a psychiatrist. The third member is a person who has suitable qualifications or experience for the task.

143 The Tribunal is required to review the accused’s case as soon as practicable after an order is made for her detention in strict custody. The Tribunal may make orders as to her continued detention, care or treatment, or as to her release.

144 The Tribunal cannot make an order for the release of the accused unless it is satisfied that the safety of that person or any member of the public would not be seriously endangered by her release. The Minister for Health and the Attorney General may appear before the Tribunal, or make submissions to the Tribunal, in relation to the possible release of the accused.

145 Where an order for release is not made, the Tribunal order results in continued detention, care and treatment in a place and manner specified by the Tribunal.

146 After the initial review, the Tribunal must, at least once every six months, again review the case and make orders as to the accused’s continued detention, care or treatment in a hospital, prison or other place as to her release.

147 If release is ordered, then it may be on conditions or it may be unconditionally. If any condition is breached, or where the mental condition of the accused has deteriorated so that she may be a serious danger to others, a further order may be made by the Tribunal for her apprehension, care and detention.

148 The conditions which could be prescribed include matters such as living in a particular place, taking particular medication, appointments with health care professionals, enrolment in educational and therapeutic programmes, to ensure that the accused is properly cared for. Other than pursuant to any such release, the accused would remain, as I have said previously, in strict custody within one of the psychiatric institutions caring for forensic patients.

149 Security conditions (as necessary) are in place while the accused is detained in a hospital, prison or other place or if she is allowed to be temporarily absent from the place of detention.

150 The accused may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired over time. However, as I have previously explained, the accused will only ever be released when the Mental Health Review Tribunal is satisfied on the evidence available to it that her safety and the safety of any member of the public will not thereby be seriously endangered.

(13) ORDERS

151 I am satisfied that at the time of doing the acts causing death the accused was mentally ill so as not to be responsible in law for her acts and, accordingly, I am required to return a special verdict.

152 Barbara Ann Doolan, upon the charge that on 28 July 2005 at Bathurst in the State of New South Wales you did murder Zane Doolan, I find that you are not guilty by reason of mental illness.

153 I order that the accused be detained, pursuant to s.39 of the Mental Health (Forensic Provisions) Act 1990, in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine until released by due process of law.

154 The Registrar is to notify the Minister of Health and the Mental Health Review Tribunal of the terms of the orders made by this Court.

Postscript

155 On application by the Crown Prosecutor, supported by senior counsel for the accused, the finding in paragraph [153] and the order made under s.39 of the Mental Health (Forensic Provisions) Act 1990 was set aside so as to permit an application on behalf of the accused to be made for the purpose of making further submissions on the question of the element of intention under s.18 of the Crimes Act 1900 in light of the finding made in the judgment that statements of the accused were unreliable and could not themselves support a finding on the issue of causation.

156 Leave was granted for further submissions to be made on that question: see: Regina v Doolan (No 2) [2010] NSWSC 194.

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LAST UPDATED:
18 March 2010