Director of Public Prosecutions v Hr
[2025] VSC 129
•20 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0126
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HR (a pseudonym) |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 March 2025 |
DATE OF JUDGMENT: | 20 March 2025 |
CASE MAY BE CITED AS: | Director of Public Prosecutions v HR |
MEDIUM NEUTRAL CITATION: | [2025] VSC 129 |
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CRIMINAL LAW – Attempted murder of child – Defence of mental impairment – Defence established - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20, s 21.
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APPEARANCES: | Counsel | Solicitors |
| For the prosecution | Ms. A. Moran | Office of Public Prosecutions |
| For the accused | Mr. N. Goodenough | Victoria Legal Aid |
HIS HONOUR:
A Introduction
On the night of 6 February 2023, the accused, she admits, administered a poison to herself and to her six-year old daughter.[1] They both survived. She has been charged with attempted murder. A defence of mental impairment is relevantly established if the accused ‘did not know that the conduct was wrong (that is, that she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).’[2] She and the prosecution agree that the proposed evidence establishes the defence of mental impairment. Accordingly, I may hear the evidence instead of the trial proceeding now before a jury.[3] If I am satisfied, on the balance of probabilities, that the defence of mental impairment is established, then I may direct that a verdict of not guilty because of mental impairment be recorded.[4] If I am not so satisfied, I must direct that the accused be tried by a jury.
[1]A suppression order has been placed and so these reasons do not identify the individuals involved.
[2]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, s 20.
[3]Ibid s 20(4).
[4]Ibid s 21(2)(b), (4).
B The lead up to the offending and the offending
The accused was born in India in 1988. Although she did not describe her childhood as happy, she studied hard and did well academically. She recalls an occasion when she, her brother and her mother all took poison at a time when her mother was ‘struggling’ and ‘felt desperate but felt she could not leave her children behind.’[5] She completed a Masters of Business Administration in India when she was 22 years old but, to the distress of her and her family, was not married by that time. In June 2015, she met her husband, to whom she is still married. They married in India, but then moved to Australia where he had been living.
[5]Psychiatric report dated 31 August 2023 by Dr Darjee, [9].
In 2016, the accused gave birth to her first daughter. Her daughter had developmental issues and was diagnosed with a severe Autism Spectrum Disorder at 18 months old. The accused struggled to cope. In 2022, the accused gave birth to her second daughter. Her second daughter is not autistic, although the accused was concerned for some time that she might be.
The attempt on her first daughter’s life took place when her first daughter was six years old and was in the process of commencing schooling at a special school. The accused, her husband and their daughter attended an orientation on 31 January 2023. The accused found this, it seems, particularly confronting and cried throughout. On 6 February 2023, when they were supposed to attend a parent information session, the accused remained in the car on her own while her husband attended the information session without her.
That night, she prepared a mixture including plant matter that she knew was poisonous, took some herself, and gave some to her first daughter. At this time, she and her first daughter were sleeping in one room, and her husband and their second child in another. The next morning, the accused’s husband found the accused and their first daughter with liquid and vomit on them. The accused told her husband that their daughter had been sick that night. Her husband took their other child to an early learning centre, then returned and spoke again to the accused. The accused told him that she had administered a drink for her and her daughter that included 30 leaves from the plant Nerium oleander (although she used an Indian word for this plant). The accused’s husband called emergency services requesting an ambulance and sent a WhatsApp message to a close family friend to ‘come home immediately’. In the course of the discussion with the emergency services operator the accused’s husband explained that his wife had intentionally tried to poison herself and their daughter.
An ambulance and police arrived shortly after. Their daughter was continuing to vomit. The accused initially stated to the paramedic conducting a medical assessment that ‘we are fine, we don’t want to come to hospital’. She was arrested. After being cautioned, the accused said ‘I thought we’d be dead’. She was transported to hospital. Later that day, the accused had the following conversation with the informant Senior Constable Allen:
SC Allen “Did you want to tell me what happened?”
The accused “Yeah. Yesterday, my daughter was sleeping and I just tried to end my life and my daughter’s life because she’s autistic and was suffering a lot with the …… situation. So we just took from a liquid of – or oil …… and, I don’t know we – how many times we vomited in the morning …... I thought we would die, but we are not dead, so I told my husband this was the situation because he was sleeping in the other bedroom, so he just came back and called the ambulance in the morning. That’s it.”
SC Allen “Yeah. Why did you want to end your life and your daughter’s life?”
The accused “Well, because she is autistic and she is not able to go to normal school and then she’s not able to understand emotion, she’s not able to understand relationships …… and she is in pain – continuous pain …... to go somewhere, she’s not able to go …... if we …... she’s not able to – sleeping, it was a big problem for her and for me because we have another small daughter. It was really hard to take care of two and she was struggling herself. So there were no medicines and no treatment and no …… so ---. “
SC Allen “Yeah, yeah, yeah. What sort of plant- you said some leaves from a plant. What sort of plant was it?”
The accused “……”
SC Allen “Where did you find that plant?”
The accused “…… somewhere near the school.”
SC Allen “Near your daughter’s school?”
The accused “Yeah.”
SC Allen “Yeah, yeah. Ok. And how did you then – did you eat the leaves? How did you consume...?"
The accused “No, just ground them and they just filter the extract.”
SC Allen “Yeah. And then you had some and gave some to your daughter as well? Yeah ok. And what were you thinking would happen after you and your daughter had the leaves?”
The accused “I thought we would both die and the problem ends and it would happen.”
The police found at her premises, as well as the materials needed to make the poison, the blue notebook that included what may be described as a five-page suicide note to her husband. I will not set out the full contents of that suicide note, but it included the following:
·Your very best parent so I believe in you to brought up [their other daughter] I want to end both [their daughter’s] life and mine bcz she cant be without mother and I cant live while she is facing this prb and stress pain of different would of AUTISM.
·If Im not doing this today im 1000000% confident that i will go mad or paralysed or anything worse happens and it will be burden for you so just to make it little better to alternative choice
·Sorry sorry sorry sorry
The police also ascertained from the accused’s mobile phone that: on 29 January 2023 the accused had searched for burial rights in Melbourne and peripheral information about poisons; on 2 February 2023 the accused had searched for information about poisoning from oleander and what dosages were deadly and whether death by oleander was painful; on 4 February 2023 the accused had searched suicide and murder-suicides; and on 5 and 6 February 2023 the accused had searched again for information about oleander and its poisoning effects.
Presumably recognising that his wife was struggling to cope, at 9:41pm on the night of the poisoning, the accused’s husband sent her a WhatsApp message that said, among other things:
Bangaru please don’t do anything hasty Please don’t harm yourself nor [our daughter] After attending today’s info session I feel more confident of [our daughter’s] progress as there is specialist care for each and every aspect and it’s not like childcare and I feel it’s the best place for her. Please for the sake of [their other daughter] at least please try to divert your negative thoughts ‘…
C Medical opinions
The accused has been assessed:
(a)by Dr Hemlata Ranga, a psychiatrist, on 11 February 2023 and who has been treating the accused;
(b)by Dr Rajan Darjee, a psychiatrist, on 8 July 2023 at the request of the accused’s lawyers;
(c)jointly by Dr Roua Jabir and Dr Sobia Khan on 20 February 2024, both psychiatrists with Forensicare at the request of the prosecution; and
(d)by Dr Dion Gee, a forensic psychologist on 3 July 2024 at the request of the prosecution.
Dr Ranga has not opined on whether the accused at the time of the poisoning was suffering from a mental impairment that would give rise to the defence of mental impairment under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, that is, a mental impairment that had the effect that either she did ‘not know the nature and quality of the conduct’ or ‘did not know that the conduct was wrong (that is, … she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).’
The other specialists have each done so. The opinions of each of Dr Darjee, Dr Jabir, Dr Khan and Dr Gee are that although the applicant knew the nature and quality of her conduct (that is, that she was administering a poison with a view to killing her daughter), at that time:
(a)She was in the grip of a Major Depressive Disorder. Dr Darjee described the accused as experiencing ‘intrusive and insistent thoughts in her head telling her there was no hope and she should kill herself… but also that her daughter would be unable to continue without her, and would be vulnerable and unsafe’. Dr Darjee described the accused’s thinking as ‘irrational and bordering on delusional’. Dr Jabir and Dr Khan accepted the accused had ‘constant, ego-dystonic intrusive suicidal thoughts and a voice in her mind telling her “go die, go, and find a way, do it. This is not a life”’ and that the accused decided to ‘take [her] daughter with her, as who will look after her if [she is] is gone?’. Dr Gee said the accused was ‘labouring under significant depressive experiences of an enduring and insidious nature’ that had a ‘persistent and somewhat catastrophic impact on her behavioural control’; and, importantly,
(b)The accused’s mental impairment at the time meant she could not reason with a moderate degree of sense and composure about whether her conduct of administering a poison to her daughter, as perceived by reasonable people, was wrong.
Dr Darjee, whose expertise is not in doubt, said in oral evidence that although the accused was not psychotic, she was close to being in a psychotic state and that the absence of psychotic symptoms did not mean that her depression was any less severe. He confirmed that, even in the absence of a diagnosable psychotic condition, the accused’s depression and mental state generally was such that she believed, when she attempted to kill her child, that she was doing the ‘morally right’ thing and further that she believed that other people would also have seen it in that way.
I accept these opinions. I’m satisfied that the accused attempted to kill her daughter that night because she intended to kill herself and she believed, in her impaired state, that in those circumstances it was the right thing to also to kill her daughter because her daughter, having regard to her severe autistic condition, would not be able to have a good life without her mother to look after her. In this way, because of her impaired mental state, the accused had lost at that time the ability to reason with a moderate degree of sense and composure about whether the killing of her daughter, as perceived by reasonable people, was wrong.
D Disposition
Accordingly, I will direct, pursuant to ss 20(2) and 21(4)(a) of the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997, that a verdict of not guilty because of mental impairment be recorded.
I will otherwise hear from the parties on what other orders should now be made.
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