Director of Public Prosecutions v A W
[2006] VSC 417
•10 October 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1447 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS (VIC) | Plaintiff |
| V | |
| AW | Defendant |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 OCTOBER 2006 | |
DATE OF JUDGMENT: | 10 OCTOBER 2006 | |
CASE MAY BE CITED AS: | DPP V AW | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 417 | |
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Criminal Law – Intentionally Causing Serious Injury – s. 21(4) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Trial by judge – Verdict of not guilty by reason of mental impairment
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms G Cannon | Solicitor for the Office of Public Prosecutions |
| For the Defendant | Mr L Hartnet | Patrick W Dwyer & Associates |
HIS HONOUR:
This is a hearing pursuant to s.21(2)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ("the Act"). This provision allows the trial judge to determine whether a person charged with an indictable offence was suffering from mental impairment at the time the conduct constituting the offence occurred.
A pre-requisite to the Judge's role in hearing such a case without a jury is the agreement of the prosecution and defence that the proposed evidence establishes the defence of mental impairment. See s.21(4) of the Act.
Mental impairment is defined in s.20(1) of the Act in these terms:
"The defence of mental impairment is established for a person charged with an offence if at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that (a) he or she did not know the nature and quality of the conduct or (b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong)."
Subsection 2 of s.20 provides:
"If the defence of mental impairment is established, the person must be found not guilty because of mental impairment."
As it is the second limb of the definition of mental impairment that the Court is concerned with in this case, if the trial Judge is satisfied on the balance of probabilities that the person charged with the offence was suffering from mental impairment at the relevant time, a verdict of not guilty because of mental impairment may be recorded. If the trial Judge is not so satisfied, an order that the charge be heard by a jury must be made.
In the present case, the accused, who I will now refer to as AW has been arraigned on the offence of intentionally causing serious injury without lawful excuse to her son, who I will call J, and that offence is alleged to have occurred on 7 November 2005 at Mont Albert North. AW pleaded not guilty on the grounds of mental impairment.
The facts surrounding this incident have been deposed to by the informant and are contained in the depositional material and they may be briefly stated.
Following discord between AW, who was then aged 20 and the father of her 21 month old child J, who I will refer to as TN, her mother Ms Kerrie O'Neill arranged for AW and J to travel by train from Shepparton to Melbourne to stay at premises operated by The House of Restoration. These premises, which are situated in Bundoran Crescent, Mont Albert North, were used for the accommodation of people in need of help.
The director of this organisation, Tom Navanua, was an accredited carer through the Department of Human Services and the Wesley Mission.
On Saturday 5 November Mr Navanua met AW and J at the Spencer Street railway station. It is not necessary to trace in detail the events of the Saturday and Sunday, sufficient to note that AW attended church services at the Diamond Valley Baptist Church in both the morning and evening of the Sunday.
The only aspect of AW's conduct which may be regarded as unusual, occurred during the evening service, when she proclaimed loudly, "I repent." This was in the context of a message about baptism. She walked to the front of the congregation, apparently with the intention of then and there being baptised. In the result, she was given a Bible and other literature to read.
On her return to Bundoran Crescent, AW was observed reading the Bible and subsequently the occupants retired to bed. At about 2 a.m. one of the volunteers at the premises, Lauren Abbott was awakened by the sound of J screaming. She also heard a banging or tapping noise. Together with another volunteer Jayne Kissell, they investigated the source of the noise, which emanated from the bathroom. On pushing open the bathroom door, AW was observed kneeling on the floor over J who was lying face down surrounded by a large quantity of blood. She was holding him down with one arm, while wielding an axe with the other.
It appears that upon the volunteers entering the bathroom, the attack ceased. The axe was removed by another carer, Rachel Abbott, whilst Jayme Kissell picked up baby J, who had suffered a number of lacerations to the right leg below the knee. In fact, his leg had effectively been amputated below the right knee.
AW made a number of statements to witnesses, including to Rachel Abbot, "I had to do it. It said in there 'as God is your witness.'" I take "in there" to mean the Bible, because AW told Ms Kissell that she was reading the Bible and it told her that she had to do it.
Police and ambulance personnel were called to the scene. Amongst a number of confused utterances to police, AW reiterated that "she had to do it". She said that to Senior Constable Felicity Bell, and one of the policemen who attended the scene, Acting Sergeant Andrew Huntington, described AW as "in her own world" and as "having a vacant look as if there was nothing there."
Following her arrest, AW was seen by a Dr Janet Towns, the Forensic Medical Registrar at the Victorian Institute of Forensic Medicine, who found her to be unfit for interview. She also recommended that AW receive involuntary treatment under the Mental Health Act 1986. This examination followed an attempted police interview in which AW said she needed help, medication and that she was hearing voices and seeing things.
In the second interview conducted by investigating police on 8 December, AW confirmed hearing voices and said she had heard them at the time that she left Shepparton. She also said she had not taken her prescribed medication, Risperidone, for over a month prior to travelling to Melbourne. It would appear on other material that the exact period may have been considerably longer. She had felt that Risperidone made her feel tired and increased her weight. AW told police, "I just wanted to be normal like everyone else is, and I wasn't, and that's why I stopped taking it just to see if I could become normal." For completeness I should add that during the interview AW showed remorse and was visibly upset when the facts of the case were related to her.
Although she wished to be normal, AW was far from normal, as her psychiatric history reveals. I will summarise it only briefly on the basis of the material before the Court.
In her early teenage years, AW evidently had some psychological difficulties and received counselling and was placed on the antidepressant medication, Certroline. It appears her teenage years were marked by conflict with her parents, and by age 18 she commenced to live with TN, the father of her child, J. That relationship may be compendiously described as turbulent. It was also laced with drug use, including cannabis and amphetamines, and in October 2004 AW briefly attended a drug rehabilitation centre in Wodonga. Within days of leaving the centre, she was taken to Goulburn Valley Mental Health for treatment. According to documentation from that service, she had florid psychotic symptoms including paranoid delusions and persecutory delusions that persons wanted to kill her, that thoughts were being inserted into her mind and that people were controlling her thoughts. At that time it appears she was not diagnosed as schizophrenic, although there was a family history, namely her father and paternal uncle who suffered from schizophrenic illness.
After intermittent periods at the Goulburn Valley Mental Health facility, AW was released in November 2004. Thereafter she stayed at premises operated by Brayton Youth Services, where she was subject to supervision. During this period, and indeed up until March 2005, J was in the custody of her mother, Mrs O'Neill.
In February 2005, AW was given full custody of J by the Family Court subject to strict conditions prohibiting drug use. She moved into a Mooroopna flat provided by Brayton Youth Services. At some point she was rejoined by TN, but the relationship remained volatile up until November 2005 when AW took J to Melbourne and the events the subject of these charges occurred.
In his statement to police, TN commented upon AW's paranoia and auditory hallucinations.
The mental state of AW immediately prior to these events is detailed in reports dated 31 May and 23 June 2006 prepared by Dr Mark Ryan, Consultant Forensic Psychiatrist at Thomas Embling Hospital and AW's treating psychiatrist, and also by Dr Lester Walton, a consultant psychiatrist. His report is dated 29 August 2006. Each of these well credentialed experts also gave evidence before this court. It is not necessary to repeat in detail their evidence, which describes AW's deteriorating mental condition and their diagnosis of schizophrenia.
In his evidence Dr Ryan said that AW was floridly psychotic at the time of offending. He also said that a major delusion at the time was that if she did not harm J as commanded, harm would come to members of her family.
Dr Lester Walton said that the event occurred in the midst of an acute episode of schizophrenia. As Dr Walton put it, in ordinary lay terms, AW was "unequivocally crazy" at the time. Both doctors expressed the view that ongoing treatment of AW's schizophrenic condition was required. Both doctors also expressed the opinion that at the time of these events AW was suffering from a mental impairment. Given the background of AW to which I have referred, which emerges from the depositional material; given the bizarre nature of AW's conduct towards her child J; and given the uncontradicted expert opinions of Drs Ryan and Walton, I am satisfied on the balance of probabilities that the evidence establishes the defence of mental impairment. Accordingly, I direct that a verdict of not guilty because of mental impairment be recorded on the charge of intentionally causing serious injury.
This has been a tragic event for both AW and J. It is a tribute to the great skill of the surgeons and the treatment team at Royal Children's Hospital that J's leg was saved, and hopefully he can enjoy a relatively normal future. Finally, the ambulance officers and investigating police are to be commended for the manner in which they handled this incident.
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