Director of Public Prosecutions v Bird
[2023] VSC 77
•3 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0129
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRENT PETER BIRD |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 October 2021, 23 February 2022, 2 September 2022, |
DATE OF JUDGMENT: | 3 March 2023 |
CASE MAY BE CITED AS: | DPP v Bird |
MEDIUM NEUTRAL CITATION: | [2023] VSC 77 |
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CRIMINAL LAW – Murder – Consent mental impairment – Accused found not guilty by reason of mental impairment – Custodial supervision order made – Nominal term of 25 years – Crimes (Mental Impairment and Unfitness to be Tried) Act1997 ss 20, 21, 41 and 47.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Hutton | Solicitor for Public Prosecutions |
| For Mr Bird | Mr S Norton Mr T Schocker | Stary Norton Halphen |
HER HONOUR:
On 9 August 2020, Trent Bird killed his mother, Lorraine Bird, at a rural property in Hedley.
In the week before the incident, Mr Bird had an argument with his wife, Katrina Rodda. Police attended, and a family violence intervention order was issued against Mr Bird. As a result, Mr Bird moved to the Hedley property.
On 9 August 2020, Ms Bird drove to the Hedley property, to visit her son, arriving around 11:30am. At some point after she arrived, Mr Bird attacked his mother. He used several items to inflict various serious injuries. Mr Bird then placed her body across the forks of a tractor, and covered her body with hay and other items.
Around 6:30pm that day, Mr Bird drove his ute to a neighbour’s property, crashing through a fence to do so. When he got there, he collided with his neighbour’s parked car. The neighbour was at home and heard the collision. She went outside and saw the accused pacing around and “freaking out”. She thought he looked “spaced out” or drunk, and asked if he was okay. Mr Bird told her that someone was writing on the walls inside her house. He tried to get inside her house, but she blocked the front door.
After wandering around outside for a while, Mr Bird then walked back to his property via a paddock. There, he got on his motorbike and rode out onto the road, where he intentionally veered into the path of an oncoming car. Mr Bird hit the car and came off his motorbike, badly injuring himself.
Emergency services attended the scene of the crash. Mr Bird was behaving erratically. He told police, “I’ve had a crash. I’ve been fighting fucking demons all day, killed one of them up the fucking back it’s on the front of the tractor. I put a fucking big stake through its head, it’s my mum.” Mr Bird became aggressive and attempted to kick and hit the police officers and CFA members, while yelling threats at them. He was airlifted to hospital, where he was treated for his injuries, including a broken pelvis.
The police then searched Mr Bird’s property. They found his mother’s body on the forks of the tractor, as he had described. Ms Bird had died from extensive blunt and sharp force injuries, mainly to the head, neck, chest and pelvis. The nature of the injuries suggest that Ms Bird was subjected to a sustained and frenzied attack with multiple implements.
Mr Bird was assessed by psychiatrists at hospital in the week after the incident. Their impression was that Mr Bird had suffered an acute psychotic episode, and he was prescribed antipsychotic medication.
On 16 August 2020, Mr Bird was found to be fit for interview, but answered “no comment” to the questions put to him. He was charged with the murder of his mother and transferred to prison on 28 August 2020.
The defence did not dispute that Mr Bird performed the acts alleged by the prosecution, but said that he was mentally impaired at the time of offending. They relied upon a report prepared by Dr Prashant Pandurangi, dated 16 April 2021, in support of that position.
The prosecution subsequently arranged for Mr Bird to be assessed by Dr Rajan Darjee. In his report, dated 13 September 2021, Dr Darjee came to the same conclusion as Dr Pandurangi in relation to Mr Bird’s mental impairment at the time of offending.
Both doctors took the following matters into account, in coming to the following conclusions.
Mr Bird is now 45 years old. He has a history of depression, and has previously been admitted to a psychiatric unit for psychosis. The mental health condition Mr Bird presented with appears to have started several weeks before the incident.
Mr Bird grew up in country Victoria as the youngest of three children. His parents separated when he was three years old; thereafter, he and his siblings continued to live with their mother. He saw his father during the school holidays, but they did not have a strong relationship. When he was seven years old, his mother re-partnered, and he has a half-brother who is eight years younger than him. Mr Bird described growing up in poverty and in a “broken family”.
Mr Bird reported that his father appeared to have had some mental health problems. His mother suffered a significant psychiatric illness after she had a stroke about 10 years before her death, but had been much better in recent years.
Mr Bird first experienced depressive symptoms in his late teens. In 2008, those symptoms resurfaced after his sister’s death by suicide. However, he had no contact with mental health services in those years.
In 2014, Mr Bird’s mental health deteriorated again when he lost his job. He sought help from his general practitioner, and was prescribed antidepressants and referred to counselling. Mr Bird’s mental health improved for a brief period, but declined again when he resumed work. He began drinking heavily to deal with “burn out” and concerns about his wife’s health problems.
In 2015, Mr Bird attended at a hospital emergency department for treatment of a high fever. When he was discharged, he began to believe that the clinicians were “against (him)”. When his wife suggested he return to the hospital, he ran to a nearby park and buried the cannula and paperwork. He was found by police and returned to hospital. Mr Bird did not meet the criteria for involuntary treatment, but his hospital notes record that several possible diagnoses were being considered, including psychotic depression and bipolar affective disorder. Mr Bird was prescribed antipsychotic medication, and remained at the hospital for treatment of his pneumonia. His psychiatric symptoms soon resolved, and were put down to delirium linked to his pneumonia.
Over the next few weeks, Mr Bird’s mental health deteriorated and he began to experience grandiose beliefs and paranoia. He was admitted to a hospital psychiatric unit in October 2015, and was diagnosed with an unspecified nonorganic psychosis or brief psychotic episode. Following medication, his mental health improved and he was discharged after a week. He continued to receive treatment from mental health services in the community. By late 2016, Mr Bird’s mental health had stabilised and his care was transferred to his general practitioner.
In 2020, Mr Bird experienced a number of stressors, including appendicitis that required emergency surgery, the deaths of his father and a close family friend, the loss of his job, and his wife developing a neurological condition. He began expressing paranoid beliefs, and sleeping less.
Mr Bird’s mental health worsened after he moved out of his own home to the Hedley property on 3 August 2020. He began fearing he would be attacked by “whatever was out there”. He began “preparing for war”, by collecting his chainsaw and other tools to protect himself from demons that he feared would come to the property to fight him.
Mr Bird drank heavily in the days before the incident, but on the night before just had “a couple of beers”.
Mr Bird felt surprised by his mother’s visit on 9 August 2020. He spoke with her, and during their conversation he formed the belief that she was there to kill him.
In Dr Pandurangi’s opinion, Mr Bird had become acutely mentally unwell by the time of the incident. Dr Pandurangi concluded that Mr Bird experienced either a brief psychotic disorder, or an acute manic episode with psychotic symptoms, at that time.
Dr Darjee provided a similar opinion. In his view, possible diagnoses for Mr Bird's condition were recurrent acute brief psychotic episodes, schizoaffective disorder, or bipolar disorder with episodes of mania with psychotic symptoms. All these possible diagnoses qualify for the defence of mental impairment.
Both Dr Pandurangi and Dr Darjee expressed the opinion that alcohol consumption would not have caused Mr Bird’s presentation.
Both experts were of the view that Mr Bird did not know the nature and quality of his conduct at the relevant time. Mr Bird genuinely believed that his mother had been taken over by an entity that was going to kill him. The experts also agreed that Mr Bird did not know that his conduct was wrong, and could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.
On 20 October 2021, a hearing was held to consider the issue of mental impairment. Because both the prosecution and the defence agreed that the expert evidence established a defence of mental impairment, s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”) allowed the evidence to be heard by judge alone.
At the conclusion of the hearing on 20 October 2021, I was satisfied that the evidence established the defence of mental impairment under s 20(1)(b) of the Act, in that Mr Bird was suffering from a mental impairment at the time of committing the offence, the effect of which was that he could not reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong.
I directed that a verdict of not guilty because of mental impairment be recorded, and declared Mr Bird liable to supervision under Part 5 of the Act. Mr Bird was remanded in custody in prison, pending the preparation of the further report required by s 41(1) of the Act. The proceeding was listed for further hearing on 23 February 2022.
A s 41 report was provided by Dr Kate Roberts of the Victorian Institute of Forensic Mental Health (“Forensicare”), dated 16 February 2022. The report addressed Mr Bird’s current mental health state and treatment.
Mr Bird had not been taking any psychotropic medication. He appeared well to Dr Roberts and was free of psychotic symptoms. He had reasonable insight into his illness, and recognised the role of stress in both of his past psychotic episodes. At the time of Dr Roberts’ report, Mr Bird was not engaged with primary or specialist mental health services in prison.
In Dr Roberts’ opinion, Mr Bird has a major mental disorder, having had one psychotic episode prior to the offence. However, he has no other historical risk factors. Mr Bird also had few current risk factors at that time, as he had some insight into his mental illness, no violent ideation, and appeared to have a stable mental state at that time.
Mr Bird’s future risk factors were that he had not always accessed support for his mental illness in recent months, and his living situation and personal supports should he be released from prison were not clear. It was not known how he might respond to increased stress, or treatment and supervision, in the future. Dr Roberts’ overall assessment was that currently risk management strategies were underdeveloped.
In Dr Roberts’ opinion, the seriousness of the offending, the lack of psychological work Mr Bird had been able to do, the fact he was not on medication, and the elevated number of future risk factors, meant Mr Bird should be admitted to the Thomas Embling Hospital (“TEH") on a custodial supervision order.
A s 47 certificate of available services was provided by Forensicare, dated 18 February 2022; it said that there were no beds available for Mr Bird at TEH at that time. Accordingly, the matter was adjourned to 2 September 2022.
At a directions hearing on 23 February 2022, the defence suggested that Mr Bird may argue at the next hearing that he should be placed on a non-custodial supervision order, because by then he would have had six months of treatment in a prison unit run by Forensicare. I ordered that the defence provide evidence supporting this, and that an updated s 41 report and s 47 certificate also be provided, before the next hearing.
A further s 41 report was provided by Dr Roberts, dated 17 August 2022. Dr Roberts reported that Mr Bird was admitted to the St Paul’s Psychosocial Unit (“SPPU”) at Port Phillip Prison in May 2022, and was doing well in that unit. He had remained free of symptoms of psychosis, and continued to take no psychotropic medication. Mr Bird had been referred for an assessment by the unit psychologist and to the occupational therapist. Mr Bird was receiving visits from his wife and family.
Dr Roberts’ overall risk assessment remained the same. She noted that while Mr Bird was now accessing support for his mental illness while on the SPPU, his living situation out of prison or hospital remained unclear. How he might respond to increased stress, or to longer term treatment and supervision, in the future remained untested. Dr Roberts reported that risk management strategies were currently in their infancy.
There was no change to the conclusions in Dr Roberts’ February 2022 report. In her opinion, Mr Bird needed to continue to develop better insight into his mental illness, and undergo psychological work to process the offence and the personal consequences.
The defence provided a further report by Dr Prashant Pandurangi, dated 19 August 2022, for use in the September 2022 hearing. Dr Pandurangi reported that, without appropriate monitoring and supports, Mr Bird would have an elevated risk of violence, especially if he were to develop another psychotic episode. In Dr Pandurangi’s opinion, a direct transition to a non-custodial supervision order was unfeasible, given the level of monitoring required to manage Mr Bird’s risk.
A further s 47 certificate of available services was provided by Forensicare, dated 18 August 2022; it said that there were still no beds available at TEH for Mr Bird.
At a hearing on 2 September 2022, the defence did not challenge that Mr Bird needed to be placed on a custodial supervision order. Dr Roberts gave oral evidence about the bedding shortage problems at TEH. The matter was further adjourned to 3 March 2023, with an updated s 47 certificate requested before that date.
A further s 47 certificate was provided by Forensicare on 24 February 2023. That certificate said that the required facilities and services would be available to Mr Bird on 3 March 2023. Accordingly I made the following final orders on that date:
(a) A custodial supervision order is made pursuant to s 26 of the Act.
(b) Mr Bird is committed to the custody of the Victorian Institute of Forensic Mental Health, to remain at the Thomas Embling Hospital.
(c) Pursuant to s 28 of the Act, the nominal term of the supervision order is 25 years from 9 August 2020, which includes a declared period of 936 days (excluding today) during which Mr Bird has been held in custody.
(d) Pursuant to s 27 of the Act, the matter will be brought back for review no later than 3 September 2024.
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