MBS v Director of Public Prosecutions (Qld)
[2012] QCA 326
•27 November 2012
SUPREME COURT OF QUEENSLAND
CITATION:
MBS v DPP (Qld) & Anor [2012] QCA 326
PARTIES:
MBS
(appellant)
v
DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND)
(first respondent)
DIRECTOR OF MENTAL HEALTH
(second respondent)FILE NO/S:
Appeal No 4981 of 2012
MHC No 256 of 2011DIVISION:
Court of Appeal
PROCEEDING:
Appeal from the Mental Health Court
ORIGINATING COURT:
Mental Health Court at BrisbaneDELIVERED ON:
27 November 2012
DELIVERED AT:
Brisbane
HEARING DATE:
11 October 2012
JUDGES:
Fraser and Gotterson JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – DIMINISHED RESPONSIBILITY – GENERALLY – where appellant alleged to have killed her twin children by inadequately feeding them – where defence of diminished responsibility raised – where there were divergent expert opinions about whether relevant capacities of the appellant were substantially impaired at the time of the offending – where the Mental Health Court declined to find that there had been a substantial impairment – where appellant contends the evidence in favour of the defence was of greater volume and higher calibre than other evidence – where appellant contends the Mental Health Court overstated and gave undue weight to aspects of the evidence, and failed to take critical evidence into account – where appellant contends the Mental Health Court’s approach to determining whether the appellant was of diminished responsibility was flawed – whether the Mental Health Court erred in its approach to the evaluation of the competing evidence
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the Mental Health Court relied upon the opinion of the assisting psychiatrists when weighing up the evidence against the appellant – whether the assisting psychiatrists went beyond their functions under s 389 of the Mental Health Act 2000 (Qld)
Criminal Code 1899 (Qld), s 27, s 304A
Mental Health Act 2000 (Qld), s 267, s 334, s 389
Uniform Civil Procedure Rules 1999 (Qld), r 766DAR v DPP (Qld) [2008] QCA 309, followed
R v Biess [1967] Qd R 470, cited
R v Lloyd [1967] 1 QB 175, cited
Reid v DPP (Qld) [2008] QCA 123, followedCOUNSEL:
S M Ryan with S Robb for the appellant
B G Campbell for the first respondent
No appearance by the second respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the first respondent
No appearance by the second respondent
FRASER JA: I have had the advantage of reading Applegarth J’s comprehensive reasons. I agree that the appeal should be dismissed for those reasons.
GOTTERSON JA: I agree with the order proposed by Applegarth J and with the reasons given by his Honour.
APPLEGARTH J: The appellant is charged with the murder of her 18 month old twins in June 2008. Counts 3 and 4 on the indictment charge that “on a date unknown between 8 June 2008 and 17 June 2008” the appellant and her de facto partner murdered each child. The period alleged in the indictment is intended to cover the possible dates of the deaths of each child. The prosecution case is that over a period of months the appellant inadequately fed the twins, thereby causing their death. In support of the charges of murder, the prosecution alleges that the appellant was aware that her inadequate feeding would lead to their death (or at least to grievous bodily harm) and, with such an awareness, she continued to inadequately feed them, thus intending the consequences.
The appellant’s legal representatives referred the matter of her mental condition at the time of the commission of the alleged offences to the Mental Health Court. The contentious issue before that Court was whether the appellant “was of diminished responsibility when the alleged offence was committed”.[1] Section 304A of the Criminal Code provides as follows:
“(1)When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only.” (emphasis added)
[1]Mental Health Act 2000 (“the Act”), s 267(1)(b).
There was substantial evidence that at the relevant time the applicant suffered an abnormality of mind, namely a major depressive illness. For there to be a finding of diminished responsibility, the Mental Health Court needed to be satisfied that the appellant’s abnormality of mind “substantially” impaired one of the capacities referred to in s 304A. The appellant contended before the Mental Health Court that her major depressive illness substantially impaired her capacity to control her actions in omitting to provide adequate nutrition to the twins. She also submitted that it substantially impaired her capacity to know that she ought not to do the acts or make the omissions which led to the deaths of her twins.
The Mental Health Court undertook a detailed evaluation of the circumstances of the offences, police interviews of the appellant on 16 and 18 June 2008, statements from lay witnesses, reports from five psychiatrists and the oral evidence given by those psychiatrists at the hearing on 16 and 17 April 2012. The judge who constituted the Court was assisted by psychiatrists, Dr J M Lawrence and Dr E N McVie.
The Court was satisfied that there was some impairment of the appellant’s capacity to control her actions, but was not satisfied that her capacity was substantially impaired. It also was not satisfied that the appellant’s capacity to see the wrongness of her actions or appreciate the consequences of her actions was substantially impaired. That capacity was impaired, but the Court found that it “was not at that point on the continuum” that satisfied the Court that it was “substantial”. Accordingly, the Court found that the appellant was not of diminished responsibility in relation to the offences of murder.
The appellant’s first ground of appeal is that the presiding judge erred in finding that the appellant was not of diminished responsibility. The appellant contends that the finding that the appellant was not of diminished responsibility at the time of the alleged offences of murder was against the weight of the evidence and involved errors in approach. In particular, the appellant contends that:
(a)by “volume” and in “quality”, the evidence which supported the defence was, respectively, greater and of higher calibre than the evidence which did not;
(b)her Honour’s finding involved overstatement of certain aspects of the evidence and a failure to take into account relevant clinical evidence;
(c)her Honour’s finding gave undue weight to certain aspects of the evidence; and her Honour failed to consider pieces of evidence, which were critical to her finding, in the context of other evidence and having regard to the competing clinical opinions about that evidence;
(d)her Honour’s approach to the issue of whether the appellant was of diminished responsibility was flawed: it involved a misunderstanding of the critical point in time for “substantial impairment”; a misunderstanding of the capacity to “morally reason”; and a conflation of the concepts of “mental illness” and “abnormality of mind”.
The first respondent,[2] the Director of Public Prosecutions, replies that the finding made by the Court was open on the evidence, and that her Honour did not err, as alleged.
The second ground of appeal, added by leave at the hearing of the appeal, is that Dr McVie went outside the functions of an assisting psychiatrist established in s 389 of the Mental Health Act 2000 (“the Act”) in her advice and recommendations to the Mental Health Court.
[2]Whom I shall refer to as “the respondent”. The second respondent, the Director of Mental Health, did not play an active part in the appeal and abides its outcome.
The nature of the appeal to this Court
For the reasons given in DAR v DPP (Qld),[3] the right of appeal from the Mental Health Court to this Court created by s 334 of the Act is not an appeal “by way of rehearing”. However, as that decision and other decisions explain, r 766 of the Uniform Civil Procedure Rules 1999 applies to such an appeal. Accordingly, this Court may draw inferences of fact and may, on special grounds, receive further evidence as to questions of fact. As this Court stated in DAR v DPP (Qld), the appeal to this Court from the Mental Health Court “is an appeal in the sense that such an appeal can succeed only if the [Mental Health Court] can be shown to have fallen into error of fact or law.”[4]
[3][2008] QCA 309.
[4]At [29].
The task of this Court is the correction of error:
“What is error in any given case depends, of course, not only on the evidence, but also on the nature of the findings or conclusions made by the primary judge. The demonstration of error may not be straight-forward where findings or conclusions involve elements of fact, degree, opinion or judgment ...”.[5]
While the appeal court has a duty to make up its own mind, it does not deal with the case as if deciding it at first instance. In its examination of the evidence, it accords proper weight to the primary judge’s views. One reason is that the primary judge had the advantage of hearing the evidence in its entirety, presented as it unfolded at the hearing. If in the process of considering the facts for itself “a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[6]
[5]Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at 435 [24].
[6]At 437 [28].
In a case about whether an impairment was “substantial” one is concerned with a question of degree about which opinions may legitimately differ. A simple preference by the appeal court for a view different from that taken by the primary judge may not carry with it the conclusion of error. The appeal court “might conclude either that there could not be said to be only one possible correct determination or that the trial judge had a particular advantage, not shared by the appellate court, in assessing critical matters of nuance and judgment.”[7] The appeal court does not proceed as though on a hearing de novo. Instead, it must give appropriate weight to the views of the primary judge and set aside his or her finding only if persuaded that the finding is wrong.
[7]Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd (2005) 220 ALR 211 at 220 [46].
Background to the alleged offences
The appellant was aged 30 at the time of the alleged offences. She had experienced an extremely prejudicial childhood. She was fostered as a baby. As a foster child she experienced abuse and trauma. At high school she began dating MJ and left home to live with MJ and his family. When she was in Grade 12 she had a brief relationship with another man and became pregnant. Her first child, T, was born in June 1997. MJ was quite accepting of T, and treated her like his own daughter.
The appellant and MJ remained in a de facto relationship. Over the following years they had three sons. The children were always well fed and cared for. In 2006 the appellant became pregnant again, and gave birth to twins, Z and L, on 27 December 2006. Following the arrival of the twins, the appellant and her de facto husband had six children under their care. By the time of their first birthday, the twins appeared happy and healthy.
Matters deteriorated in early 2008. The relationship between the appellant and MJ changed. They slept in separate rooms. MJ would compete in poker tournaments at a local tavern and drink too much alcohol. He would take the children to school or pre-school, and collect them from after school care.
According to the appellant, in March 2008 she said to MJ that she needed to give the twins up to foster carers, but he would not listen. The appellant spent an increasing amount of time on the computer. The care that she took of herself and her home declined, but the older children were still fed and cared for.
The situation of the twins was quite different. As was later revealed in the appellant’s interviews with police, the twins were given nothing but formula from the time they were 15 months old, and in the weeks leading up to their death the appellant sporadically gave them a couple of bottles a day. Towards the end of their lives the appellant knew that they were not getting enough sustenance and that this was not right. They were kept in a room and had not seen sunlight for three months. When asked by police why she did not ask for help, the appellant stated, “When they got too small I was really scared that I was going to be in a lot of trouble.”
As Dr van de Hoef observed, it seems that the appellant “successfully prevented every other adult from sighting the twins between April and June 2008.” An example of how the appellant prevented others from seeing the twins appears in the evidence of one of the owners of the house that the family rented after October 2007. The owner never saw the twins when she inspected the rental property. They were in their room, with the door shut. Each time the appellant told the owner that the twins were asleep. Not including two house inspections, the owner went there about three to six times. In January 2008 the house was messy but the appellant said, “We’re getting there, we’re alright”, and seemed happy. The owner did not return to the house until the next house inspection in late May 2008. When she arrived in the early afternoon the owner could hear the twins crying. The appellant explained that they were sick and that she was running late. The owner could hear the twins screaming in the bedroom and said to the appellant, “You go and look after the twins and I’ll just do what I have to do.” The appellant appeared flustered and nervous. She was poorly dressed. The appellant said to the owner about the twins, “They’re alright”, and followed her into various rooms. When the owner returned to the vicinity of the bedroom in which the twins were crying she asked, “Can I go in?”. The owner also said, “Do you want to go in there?”, to which the appellant responded, “No they’re alright”. According to the owner:
“To me the children sounded exhausted from crying, by this stage they weren’t screaming anymore, they were just sobbing. I thought she should have checked on them, but she didn’t seem concerned.”
After the inspection and discussion with the appellant, the owner gained the impression that the appellant “wasn’t getting on top of things”. She thought things had changed from the first house inspection.
Statement by the appellant’s biological mother
The appellant’s biological mother, SM, gave evidence that until around February 2008 she would visit the appellant regularly and help with the children. She would often spend the night at the appellant’s house. By February 2008 the appellant was spending an increasing amount of time on the computer, and she would later prevent SM from seeing what she was doing on the computer.
SM recounted that the appellant prevented her from going into the twins’ room. She would often hear the twins crying and try to check on them, but the appellant would stop her from entering the room, telling her that “she would look after them.”
The last time SM insisted on seeing the twins was around March or April 2008. She said that L looked fine but Z was not looking well. Z’s “face appeared very drawn and he was very clingy”. The appellant told her that she was “taking him to the Doctors tomorrow” because “He was eating and drinking but was [losing] weight”. SM stated that the following day she phoned to see how Z was and was told:
“The doctor said that [L] was fine. But he was concerned about [Z] because he was [losing] weight and not growing. The doctor has put him on a special formula and if he didn’t put on weight he would send him to a paediatrician at the Mater Hospital.”
SM was also told something about Z being put on hormones or steroids to help him grow. There is no evidence that either of the twins was taken to a doctor in the first half of 2008. The appellant told police that when she noticed the twins getting thin in around March or April 2008 she phoned a nurse at a pharmacy for some advice.
SM stated that every time she visited the appellant she was told that the twins were sleeping or had just gone down for a sleep.
Statement by the appellant’s foster mother
JH fostered and adopted the appellant. She stated that she had previously held no concerns about the appellant’s ability as a mother. The children had always appeared healthy and well fed. JH stated that after the birth of the twins MJ’s drinking had become worse. He would drink and play poker at the pub every night. JH confirmed that the appellant’s biological mother, SM, had helped the appellant with the children and regularly stayed with the appellant until early 2008, when the appellant told SM that she did not want her to stay over.
JH said that the older children would usually stay with her every Saturday night and sometimes also Friday night. MJ would usually drop the children to her house and pick them up again.
The last time she saw the twins was around Christmas 2007. At that time she saw the twins in the back of a car, and they appeared healthy and well. JH advised that the appellant used to go shopping with the twins and SM, but this had ceased in recent months.
In about May 2008 the appellant told JH that she had been sleeping on the couch in the lounge room. JH also noted that the appellant had been spending time in chat rooms. MJ expressed his concern to JH about the appellant’s computer use and the appellant’s eldest daughter, T, said to JH, “Mum’s on the computer all of the time now.”
T called JH in late May 2008, about three weeks before the twins were found. T was crying, and saying that the twins looked thin and terrible. JH stated that when she went to the house the next day she did not gain access to the twins. She heard the twins crying and the appellant said she was going to give them a bottle. JH said, “Can I see the twins?”, to which the appellant responded, “After they have their bottle.” JH stayed for about an hour and noticed that the twins stopped crying but did not see them.
The following weekend T again indicated to JH that the twins looked very thin. When JH asked MJ about them he responded to the effect that “they are there and alright.”
When she next saw MJ a week later JH asked about the twins again and MJ said that he did not know how they were. Contact after this was limited to MJ dropping the older children to JH’s house.
JH collected T from the appellant’s house on Saturday, 14 June 2008. The appellant barely let her in the door and said, “Here, take [T]. [T] take these clothes. [MJ] will bring the other kids over later this afternoon.” She then shut the door.
The evidence of the twins’ siblings
T was interviewed by police on 17 and 21 June 2008, not long after her eleventh birthday. Her evidence for the purpose of court proceedings was pre-recorded pursuant to s 21AK of the Evidence Act 1977 in April 2011, when she was aged 13.
T told police in June 2008 of an occasion some weeks earlier when she had “snuck into” the twins’ room when the appellant was dropping MJ off at poker. The twins were “really thin” and she called her grandmother because she was scared about what would happen to them. Her grandmother told her that she would come over and talk to her mother. She was later told by her grandmother that when she did so the twins were asleep, that she stayed for a while but then had to leave due to a commitment. When T got home from school that day her mother told her that she “shouldn’t be telling people much cos um um we might be taken away from her”.
In the police interviews T described how the twins had not been coming out of their rooms in recent months. She explained:
“Well they hadn’t been coming out of their rooms much because Mum’s been so upset with Dad, she it hadn’t come to her and um when her computer arrived um she she’s been really addicted to it, she hasn’t been going off it, and um oh I think that’s it.”
When the family first moved in things were not so bad, the twins were coming out of their room and people were coming over. But since the appellant got her computer this had changed. She had not been letting most people over. According to T, the appellant had “gotten addicted to this game on it, it’s a chat room.” The appellant sat there all day and T did not try to talk to her because she thought the appellant would get mad at her. The computer was used exclusively by the appellant and one of the programs that she used was called “Second Life”.
T described how the appellant used to go shopping nearly every day, but when she got the computer “she never went shopping, she would actually just sleep, eat and go onto the computer.”
When T and her siblings would arrive home after being picked up by their father the appellant would open the door and then go back to the computer, watch TV or take a nap. When asked who would cook dinner, T explained, “most of the time we’d buy something randomly and ah then she’d cook tea.”
T was upset at MJ’s always going to poker. He would spend all his money at poker and there was no money “for clothes and school and stuff.” The family rarely went out to movies and the like. The appellant and MJ were not really talking to each other unless the appellant was “nagging him about cleaning up.” On occasions they would argue. T would yell at MJ because he always went to poker and also about not going to the twins. T was often away from school because of headaches or a cold. Sometimes the appellant did not have “enough food to take us to school because dad always spends all the money on poker”. She said her mother “got even more depressed” than she already was. By depressed T meant that the appellant had “all these bad feelings like angry, upset and stuff like that.” She thought her mother became depressed when her father started going to poker a few times a week, and her mother got upset because he was losing money.
T recalled an occasion when her grandmother told MJ that he should go into the room and check on the twins. But MJ never did that.
T recalled that the twins stopped coming out of their room when her mother got her new computer. Things started to change after that. The only thing that her mother was feeding the twins was formula, and the appellant would go into their room for a matter of minutes. Because she was not allowed in the room, T would not see her mother feeding the twins, or T would be doing other things.
On the night that T went into the twins’ room and saw how thin they were she eventually left, shut the door and went far enough away so she could not hear them crying. Soon afterwards when her mother arrived home she did not want to tell her that she had been into the room. The next day, after T’s grandmother had visited, the appellant became upset and said to T that she had no idea what happened. She then went to the computer and “started crying and sulking”.
In her evidence in 2011 T confirmed that the appellant tried to deter her and her siblings from going into the room.
The appellant’s son, L, was aged nine at the time of the twins’ deaths and when he was interviewed by police on 16 and 21 June 2008. He told police how he would “sneak” into the twins’ room when their mother was on the computer. He and his siblings understood that they were not allowed into the room, and he did not want to get into trouble for doing so.
L’s interviews with police described how his mother would cry and say that she wished she could have a better life. She was upset with “naughty kids” (which in its context and in the light of other evidence described misbehaviour by some of the twins’ siblings) and “a mean husband she like wants a better husband”. L described how his mother never went anywhere, wanted to lose weight and ate “all this junk food”. When his mother was on the computer she would drink rum and coke. L thought that she would drink something like ten cans of pre-mixed rum and cola a day because when he came home there were that many cans on her desk and he would pick up all the cans and put them into a rubbish bin.
L could recall occasions when he saw his father go into the twins’ room, and one occasion when he saw him give them a cuddle. His father never made the twins bottles of formula. L’s evidence of MJ’s failure to feed the twins is confirmed by other evidence.
L had the wherewithal to mix formula with water in a bottle, microwave it for the same time that his mother did and take the bottle into the twins’ room and feed them. He would lay in the room with them.
L told police that he had seen the twins on a recent Saturday. He also recounted an apparently recent occasion when they were crying and he went into their room and lay down with them. On this occasion they were alive and he hugged them and they started laughing. It is not entirely clear when this happened.
L explained that his siblings would also sneak into the room to see the twins without anyone else knowing. He told police, “If one of us gone into the room when mum knows she’ll umm we’ll get in trouble.”
The events of 16 June 2008
On Monday, 16 June 2008 the appellant went to the shops. While she was there, T, who was aged 11 at the time, walked past the twins’ bedroom and smelled something. She then entered the room and saw that the twins had died. When the appellant returned from the shops, T told her she now knew why the appellant had been crying lately. The appellant waited for MJ to return home and then informed him the twins had died. That evening the appellant telephoned JH and said that she wanted JH to come and get the kids. When JH arrived at the home and asked what had happened, the appellant replied, “They were crying. I gave them a bottle but they kept crying. I walked out.” JH asked the appellant, “Didn’t you feed them since?” The appellant replied, “No”. JH stated that to her knowledge the appellant had not suffered depression after having the children.
The police investigation
When police arrived at the appellant’s home they located the decomposing bodies of the twins laying in a cot. The house was in disarray and dirty. When initially interviewed by police the appellant informed them that she had been having significant relationship problems with her partner, he had not been providing any support for the children and he had not seen the twins for several weeks.
The appellant told police she had discovered that the children were dead some time on either Sunday, 8 June 2008, or Monday, 9 June 2008. She was unable to recall when she had previously seen the children alive. The appellant stated that in the two weeks before finding them dead she had the flu and had only been feeding the children with a bottle. She indicated that she changed them only occasionally and rarely took them out of their bedroom. She stated to police that she assumed her partner was attending to the children’s needs when she was sick. She believed their deaths occurred because she had not fed them enough.
MJ told police that he had had nothing to do with the twins since December 2007 and had nothing to do with the day-to-day running of the house. He stated that he had not checked on the appellant and whether she was providing appropriate care to the twins.
A post-mortem examination revealed that both children had been severely malnourished.
Subsequent inquiries revealed that no person apart from the appellant and the older children had seen the twins since March 2008.
Police interview on 16 June 2008
The appellant was first interviewed at length by police on the evening of 16 June 2008. She indicated that she was fairly sure she had checked on the twins one afternoon and they were okay and that the following day they were dead. She was uncertain as to the actual time lapse but thought it was only one day. According to the appellant, the twins died on either Sunday 8 or Monday 9 June 2008.
The appellant explained how she came to enter the twins’ room that day:
“… I went in because I thought you’re so quiet, the house was quiet and um I’d finally woken up off the lounge and um went in after I’d fixed up the kids up I thought it was funny that there was no crying, so that’s why I went in.”
She described finding the twins. She said their eyes were open and they were both cold to touch. The appellant could see they were both dead. She described her reaction:
“And um, yeah I got quite a stunned and that’s when I walked out of the room for (unintelligible) to the main bedroom and yeah when I walked in [MJ] said ‘What are you doing’ and all gruffly and then yeah the kids were all playing up so I went out and then looked after them, cause I didn’t know how to tell him… that they were… not alive and then that’s when I waited for him to wake up and [I’m] pretty sure that’s the same day he went out.”
The day after she found them dead the appellant went into the room and moved them into the same cot. She explained, “My reasoning to pick them up was just, I didn’t know cause I didn’t, didn’t want to believe that they were dead, I don’t know.”
T found the twins a week after they had died. She discovered their bodies when the appellant was at a nearby food store.
The appellant told police that she had used the internet regularly:
“yeah every now and then regularly… Just use it for websites, you know, check emails, that’s about it. I did get onto a program (unintelligible) but then I removed it cos it was taking up too much of my time.”
She had used the computer the afternoon the twins were found, checked her internet banking and looked at YouTube before she closed it. She was able to indicate to police her internet provider as well as the package’s cost and data allowance.
The appellant confirmed that since December 2007 the twins had spent a lot of time in the bedroom, and in the couple of weeks that she was sick they were never taken out of their room, “Only just for a quick bum change, that was it”. She confirmed that she and the twins were basically housebound for several months.
The appellant said that she was not feeding them food regularly and was not feeding them properly. She said, “Um… I think it was once or twice. Um… once or twice a day, that was about it… not properly.” The appellant stated that when she fed them she would make up a bottle each and give it to them. The twins would feed themselves and would always finish their bottles. She said the last feed she gave them was on the afternoon before they died and that they had finished their bottles because when she went into the room the bottles were empty. She stated:
“Well that’s what I said, you know like they’d be wake up and they were crying and then I’d hear them up saying something you know that they need to be fed so I you know just thought well I thought I remembered going in and giving them a bottle.”
The appellant told police that T would try to mother the twins. The appellant would “tell her you know, just leave them, she wanted to mother them kind of thing but that was about it.” When asked what was wrong with that, she replied, “Nothing really just I didn’t want her you know going in their room and picking them up kinda thing. It’s always just been my way with all of them.”
The appellant indicated that the other children were always fed and that “[they’re] not starved”. She told police that her other children would either take a packed lunch to school or have tuckshop, and that in the evenings they had recently bought a lot of takeaway. She also stated that ordinarily she would cook many of the dinners at night as well.
The appellant said she had bathed the twins two days before they died. She bathed them about every two days and she would normally wipe them over with nappy wipes after she changed their nappies.
Police interview on 18 June 2008
The appellant was interviewed again on 18 June 2008. In that interview the appellant confirmed that her relationship with MJ had deteriorated in the months leading up to the deaths of the twins. She confirmed that he drank more heavily in that period. He would come home and abuse her after he had been drinking. She stated he was hardly ever around. As a response to this she used the internet a lot more. He was playing poker a lot and on Friday nights he would not come home until 2.00 am, and then sleep most of the weekend.
She stated that during the week he would come home with a six pack of beer, drink it and then go out and play poker. If he was not doing that, he was in the main bedroom. Up until January or February he was interacting with the children but after that he did not do very much at all. She stated that the last time she had brought the twins to him was in February. She asked him to hold L as she was busy with the other children, but this “seemed to be a big drama” for him.
The appellant stated that she told MJ that she was not coping and had said to him, “I think I need to give them away.” He responded by saying that was “rubbish”. She stated that he never went out of his way to find out why she wanted to give them up. The appellant said she spoke to MJ six or seven times about giving the twins away but he would “just shrug it off.”
In late February or early March 2008 the appellant confided in JH that she needed to give up the twins. When asked why she felt that way, she replied, “Because I knew, I was (unintelligible) I just felt that I wasn’t doing enough for them. There just wasn’t enough time to go around for all of them.” She stated that in the months leading up to the deaths of the twins she would go into their room in the mornings and give them a bottle, change them and then put them in the lounge room with her child, N. She stated:
“as I got more depressed about our situation, no money and things like that I just kind of like, and [N] was running off, you know running away and things. Like, you know be running down the street after him and I’d have to put them back in their room and (unintelligible)”.
The appellant told police, “I knew deep down that they needed to go, you know, they needed to get help.” When asked what made her think that, she responded “Cause of their weight.” When asked what she thought would happen to the twins if she did not give them up, she replied:
“I didn’t know what would happen. I didn’t know. I kept telling myself that tomorrow I was going, you know. I was just going to fix them. I was going to do everything right. I was. I just don’t know how long? How this just got out of hand how long it went?”
The appellant recounted that up until May the twins seemed alright. She stated that in the previous December they had been crawling and they would stand up in their cot. She stated that neither of the twins ever walked. When asked why they never walked, she replied, “Cause lack of interaction with him.” By March they were “just laying, just laying about … They were just rolling. That was just it.”
When asked how much interaction she had with the twins in the last few weeks she stated that she would go into the room probably three or four times a day, but not for very long. She stated that they were laying in their cots and would cry until they were given a bottle.
She stated she would bath them at least twice a week “until (unintelligible) they got really sick. And then I stopped.” This was approximately two weeks before she found them dead. The appellant realised the children’s weight loss was a problem around April. She explained:
“I just felt like if they had bottles, if they weren’t crying, they were out of the way, you know, if I knew that they were okay. Because the other four were just, just everywhere. They, you know, there was just, they. I had them, you know one leaning out the window, one’s you know in the lounge room, one was in another place…”.
The appellant said she used the computer for about six hours a day. Whilst she used the chat line “Yahoo!”, she did not discuss online the difficulties she was experiencing. She chatted with people she did not know personally. When asked why she spent so long on the computer, she responded, “I don’t know. … It was just human interaction, I didn’t have anything, I didn’t have anybody else, I don’t know. I’d sit down and ask myself.”
She indicated that life became very difficult after Christmas because MJ lost his driver’s licence. At that time she was giving the twins a regular diet including meat and vegetables, cut up sandwiches, cereal and fruit. That had ceased about February. When asked why their diet changed to only formula, she stated, “My laziness”. She added:
“Um I, I knew that [formula] was okay. I, I kept telling myself I have to start getting these kids back to normal. I, you know, I knew what I was doing was wrong. You know, I knew they were losing weight and I tried to give them some jar food.”
She said they did not like the taste of jar food. She confirmed that the children were getting a lot smaller and “had lost a fair bit of weight.” She continued, “Um, um they’d got a lot smaller. Um, ‘cause they were nearly. They were a size 0.” She indicated that the children started to look skinnier in the face and bottom. They looked “withdrawn” and a bit sunken on the cheeks.
The appellant also discussed in greater detail the fact that she had known the twins were dead for over a week. She discussed the difficulty she had telling MJ the twins were dead. When asked, “What do you think you were going to do if you didn’t tell [MJ]?”, she responded:
“Every day I told myself that I was going to ring the police so that my babies had to be buried. I was never gonna hide them but I just didn’t want to give them up. I hoped that they would wake up and hope that it was a dream. It never was. I don’t know how it got to this point that I could do this to my kids.”
She said that she knew the twins died because she did not feed them properly. When asked why she thought that was the cause, she replied:
“Because that week previous that I found them I don’t think I I don’t I think I was going in there probably once or twice twice a day I gave them a bottle and went back to sleep on the lounge. [MJ] and I have had this massive we’re just arguing all the time when he was home at night time and things like this he just had no money.”
The appellant then stated that the last time she saw the two children alive was Saturday, which was a day or two before she found them. She described her son as being lethargic and “really drawn and skinny”. The appellant stated that over that weekend she got pretty sick and she did not go and see the twins for two days. She realised she had slept for nearly one whole day and that they had not been fed that day, and that there was probably a gap of two days when she did not give them a bottle. When she woke on the Monday she realised that she had not heard the twins. She said she was pretty sick on the Sunday night and that her memory of that weekend was hazy.
The appellant confirmed that the last time her mother or her adopted mother saw the twins was about March. She told police that when they asked to see the twins she would say they had just gone to sleep. When asked why she would not let them see the children, she confirmed that it was because “they were smaller”. She stated that the twins were in fact asleep a lot of the time. The appellant thought MJ was deliberately avoiding contact or any sort of interaction with the twins. She recounted that she had not asked him to take care of the twins when she was sick. She indicated that he had plenty of opportunities to go and look at them, feed them or give them a bottle, and stated that he would have heard them crying but did nothing.
When asked why she did not feed the twins she stated that she put them “out of sight. So I could deal with the other four”. When asked, “Was you not feeding these kids a way that you would be free of these children?”, she replied that she did not want “that they were dead or anything” and that when she said she wanted to get rid of them she meant that she “[just] wanted someone to take them”. She stated that she did not deliberately starve her children: “No. No. No I didn’t deliberately do it. I didn’t think they would get this bad.” She confirmed that it was in March or April that she first observed signs of malnutrition and starvation.
In summary, the appellant told police that she gave the babies nothing but formula from the time they were about 15 months old and that in the weeks leading up to their death she sporadically gave them a couple of bottles a day. She knew they were not getting enough nutrition and that this was not right. When asked why she did not ask for help she stated, “When they got too small I was really scared that I was going to be in a lot of trouble. I tried to fix it.” She could not explain what she did to fix things other than talk to MJ about giving the twins up. She told police that she knew that she had to get someone to the twins but did not know what would happen when she did. She also told police that she kept telling herself that the twins would get better.
Psychiatric assessments
Dr Hannah, a psychiatrist in the Prison Mental Health Service, undertook an initial assessment of the appellant on 20 June 2008. The appellant was subsequently admitted to The Park High Secure Inpatient Service on 9 July 2008. At the time of this initial assessment, the appellant described feeling increasingly depressed, hopeless and overwhelmed. She described being aware of tasks needing to be completed but having no motivation to complete them. Her recollection of the previous six months was poor, but she could remember either “yelling, crying or sleeping” and that she felt she was “in a black hole”. She reported not feeling right in herself since the twins were born and had noticed a significant deterioration in her mood and function over the six months prior to her arrest.
In the months following her admission to The Park, the appellant was treated by another psychiatrist, Dr Voita. At different times in 2008 and early 2009 the appellant was interviewed by other psychiatrists. It will be necessary to consider in some detail the reports of the five psychiatrists who gave evidence before the Mental Health Court and their oral evidence. Shortly stated, their evidence is to the effect that the appellant was in a state of significant depression during the months leading up to the deaths of the twins. There are some differences in their opinions about the severity of her depression. However, there is no dispute that the appellant was in a state of significant depression during those months. An assessment undertaken by Mr Peros, a psychologist, in January 2009 reached the conclusion that the appellant was of “grossly low average intellect.”
Before considering the reports and oral evidence of each of the psychiatrists, it is appropriate to make some general observations about this aspect of the evidence which was evaluated by the Mental Health Court. Some of the psychiatrists had advantages over others. For example, Dr Hannah saw the appellant four days after her arrest. Naturally, the appellant’s condition that day, which Dr Hannah assessed as involving psychomotor retardation and depressed mood, would have been affected by the events of the previous few days and other events after the twins died. Her state may not have been the same as it was before the twins died. However, Dr Hannah had the advantage of seeing the appellant before any of the other psychiatrists. Dr Voita saw the appellant on at least 20 occasions in the following months, far more occasions than other psychiatrists who did not treat her and who interviewed her for the purpose of forensic assessments. However, whilst Dr Voita had the advantage of seeing the appellant on many occasions, she was briefed with far less material than Dr Sundin, who was comprehensively briefed by the appellant’s legal representatives for the purpose of providing a report. These points are made to illustrate the proposition that each psychiatrist who gave evidence, including the two who saw her as a patient, had certain advantages and disadvantages in reaching the opinions that they did.
The reports addressed a variety of matters including expressing opinions as to unsoundness of mind,[8] diminished responsibility, fitness for trial and future management. All the psychiatrists considered that the appellant was suffering from a mental disease at the time of the commission of the alleged offences because, by at least June 2008, she was experiencing a severe, or at least a moderately severe, major depressive episode. This and other evidence led the Mental Health Court to conclude that at the time of the alleged offences the appellant was suffering from a “mental disease” within the meaning of s 27 of the Criminal Code. The Court considered whether the respondent’s mental illness was of such intensity that she was of “unsound mind”[9] at the time of the alleged offences and therefore was not criminally responsible for her actions. None of the psychiatrists supported a finding that the appellant was totally deprived of any of the capacities referred to in s 27 of the Criminal Code.
[8]Criminal Code s 27, The Act, s 267.
[9]The Act, s 267(1)(a) and the definition of “unsound mind” in the Schedule to the Act.
The contentious issue was whether the appellant was of “diminished responsibility” when the alleged offences were committed. The psychiatrists, both in their reports and in their oral evidence, expressed their opinions about those matters and also “swore the issue”. Having a psychiatrist express an opinion about whether an impairment of one of the capacities referred to in s 304A was substantial may be a convenient course. However, the term “substantially impaired” is imprecise and different psychiatrists may have a different conception of what is meant by “substantial” in such a context. In R v Biess,[10] Matthews J citing R v Lloyd[11] stated that whether there is “substantial” impairment is a question for the jury to resolve and that “substantially” has been explained as being “something between trivial or minimal and total.”[12] On any view, the Mental Health Court’s determination of whether a capacity has been “substantially impaired” involves a question of fact and degree about which conclusions may reasonably differ. Evidence from psychiatrists about whether an impairment is substantial or not involves the use of an imprecise term.
[10][1967] Qd R 470 at 485.
[11][1967] 1 QB 175; [1966] 2 WLR 13.
[12]R v Biess (supra) at 485; See also Re CJS [2003] QMHC 013 at [14] in which Margaret Wilson J described the term “substantial” as “an imprecise term”.
In those circumstances, the difficult judgment that the Mental Health Court was required to reach is not one which can be undertaken by means of a head count of those psychiatrists who, either in their reports or in their oral evidence, swear the issue of whether an impairment was substantial. First and foremost, this is impermissible since the issue is one for the Court, having the benefit of the psychiatric and other evidence and the advice of the assisting psychiatrists. Moreover, one expert witness’ understanding of what constitutes “substantial” may differ from the understanding of another. If so, they may reach different conclusions about the ultimate issue of whether a person’s impairment is “substantial” but be in agreement on most or all other matters.
The Mental Health Court was required to consider far more than the conclusions reached by the expert witnesses. It had to consider the reasons for those conclusions and the extent to which the evidence supported or did not support them. The Mental Health Court also had to consider a substantial body of other evidence. Having done so, and with the advice of the two assisting psychiatrists, the judge had to reach a determination which was not straightforward, and which involved a matter of degree. In doing so, the judge had the advantage of hearing the expert witnesses give their evidence. Even without that advantage, the judge who constituted the Court, and the experienced psychiatrists who assisted her Honour, brought to bear substantial experience of issues involving mental health. The determination made by the Mental Health Court, and the advice given by each of the assisting psychiatrists, may be characterised as involving a preference for the opinions of some of the expert witnesses over the opinions of the others. To the extent that this occurred, the Court was not involved in a simple head count, and the decision which it reached cannot be treated as suspect, let alone erroneous, because it reflected the opinion of only two out of the five psychiatrists who gave evidence.
Because the appellant’s argument that the Court’s finding was against the weight of the evidence relies upon both the “volume” and the “quality” of the evidence which supported the defence and criticisms of some aspects of the evidence which did not, it will be necessary to address in some detail the evidence given by each of the psychiatrists.
As significant as the expert evidence was to deciding whether or not the appellant was of diminished responsibility, it must be recalled that her Honour’s determination involved a consideration of a substantial body of other evidence that permitted her Honour to reach a conclusion about the severity of the appellant’s depression, psychological and personality factors which separately influenced her behaviour and affected her capacities, and the extent to which the appellant’s “abnormality of mind” impaired one or more of the relevant capacities.
Dr Voita
Dr Voita prepared a comprehensive psychiatric report dated 2 September 2008 and was the co-author of a discharge summary dated 24 September 2008. Her opinions were based upon a variety of material, including police records of interview with the appellant, lengthy interviews with the appellant on 12 August and 28 August 2008, and collateral information about the appellant’s history obtained from her foster mother and her biological mother. At the time she wrote her report dated 2 September 2008 Dr Voita had seen the appellant in her role as her treating psychiatrist on more than 20 occasions.
The information that Dr Voita relied upon included the appellant’s self-report that her depression deteriorated after finding the twins deceased. When asked how she was spending her time in the two weeks before the children’s death, the appellant told Dr Voita, “Just sleeping, on the computer, looking at You Tube, talking, checking my emails ... then I’d get tired, lie down again, grab [N] and lay down with him, send Karina (UK friend) emails, forward emails that Judy and Des had sent me ... I looked at You Tube, sat on Yahoo chat rooms talking.”
In her interview with Dr Voita on 28 August 2008 the appellant admitted that she noticed soon after March 2008 that the twins were losing weight and stated, “I kept thinking I had to do something but I was always terrified that they would be taken away and so would my other children ... I did not on purpose not feed them ... I just started to go into denial and thought that they would get better.”
Dr Voita made a primary diagnosis of Borderline Personality Disorder. She also diagnosed a Major Depressive Episode of moderate severity, and expressed the opinion that the depression deteriorated after the appellant found the twins deceased and after her arrest. Dr Voita observed:
“Prior to finding the twins deceased, in spite of her depression she was still able to care for the other four children, spend time on the internet and had ongoing contact with her foster mother and her biological mother.”
Dr Voita commented on the significant marital disharmony arising from MJ’s alcohol use and gambling problems. This gave rise to significant resentment and anger towards him. The appellant stated that she had told MJ on a number of occasions that she was not coping and that the twins would be better off in foster care. This apparently did not change his attitude and he dismissed her concerns. Dr Voita’s report continued:
“... I do not believe [the appellant] would have been experiencing such a state of mental disease or natural mental infirmity as to deprive her of the capacity to understand what she was doing, or of the capacity to control her actions, or of the capacity to know that she ought not do the act or make the omission as defined under Section 27 of the Criminal Code. I am of the opinion that the neglect of the children was as a consequence of primitive psychological defences such as denial due to a severe personality disorder. I am of the view that the offences were not psychotically driven and that she was aware of the nature of her actions and the possible consequences if she did not care for the children. It is clear that she was aware as early as March 2008 that the children's health was deteriorating but chose not to seek medical help for fear of losing custody of them and the other children. It appears that as time passed and she witnessed their health decline, she kept them out of sight by ‘closing the door’. She herself can identify that she was in ‘denial’. This unfortunate tragedy unfolded in a setting whereby a number of responsible adults were disengaged from caring for the twins and did not take responsibility for their care.
The fact [the appellant] did not inform any member of her family of the twins' demise until their subsequently (sic) discovery by her 11 year old daughter, further attests to her using denial as a defence mechanism. She exhibited denial and avoidance of the reality of the situation and in effect whereas it might have been possible to intervene at the early stages, as a consequence of her behaviour their demise was certain and beyond retrieval.”
In her oral evidence, and after considering additional material and information, Dr Voita confirmed her diagnosis of a Borderline Personality Disorder and a Major Depressive Episode. She acknowledged that the appellant was suffering from depression prior to the twins’ deaths and her arrest, but thought that it worsened after her arrest and being in custody. She assessed that the appellant’s depression had been much the same in the months prior to the twins’ deaths and that the issue was the degree of its severity.
On the assumption that it involved escapism and not particularly complex games, Dr Voita did not think that the appellant’s excessive internet use was a feature of depression. She found it difficult to explain that and other behaviour by the appellant on the grounds of depression. Dr Voita said that it was clear that “there were some psychological mechanisms and primitive ... coping mechanisms.” Even when other people tried to assist or to intervene, including the appellant’s children, the appellant resisted. Excuses were given when adults visited as to why they could not see the twins. Dr Voita said that she could not explain that behaviour as part of a depressive disorder.
As to the extent of the appellant’s depression, Dr Voita noted that there was contradictory evidence as to its severity, including reports of other parties who did not describe the appellant as depressed. However, even if the appellant’s depression was described as a “severe depressive episode”, Dr Voita considered that it did not fully explain the circumstances. Dr Voita noted that the appellant’s 11 year old daughter had noticed the deteriorating state of the twins, told her mother about it and said that for a while the appellant starting feeding them more. As Dr Voita observed, it was not just the last week that contributed to the tragedy – it was something that had happened over a period of months. The appellant’s depression did not fully explain the situation and Dr Voita identified issues in terms of coping mechanisms and personality function. According to Dr Voita, the appellant “certainly was aware that things were dire but still didn’t actually act.” Her inaction was not an expression of her depressed state. Instead, “there were psychological mechanisms that are not necessarily due to the depression” and Dr Voita attributed the element of denial to a “dysfunctional coping mechanism related to her personality disorder rather than relating to the depression.”
As to the capacity to make decisions about the welfare of her family and the twins, and the capacity to appreciate the rightness or wrongness of her actions “with a moderate degree of sense and composure”, Dr Voita accepted that there was some impairment. It was at least minimal to moderate, but she did not accept that it was substantial. When examined about this conclusion, Dr Voita explained that whilst there was a major depressive disorder other factors influenced her opinion, including the fact that the twins were hidden away and there were attempts to prevent others from seeing or having contact with the children. She accepted the phrase “apparently purposeful isolation of the twins.” She accepted that if there was not that purposeful or apparently purposeful isolation of the twins, she would have concluded that there was substantial impairment.
Dr Voita concluded that the way the twins were not looked after and shut in a room was attributable to the personality disorder rather than to depression. One way of explaining the appellant’s denial and being terrified that her children would be taken away from her was the fear of loss and abandonment, particularly the loss of her children. This was tied in with stopping people from being able to see the children. According to Dr Voita, the appellant was conscious of the fact that she was not helping the twins and that no-one else was feeding them.
The appellant was said to be able to cope with different situations, and have sufficient capacities to spend a lot of time on the internet. This required a certain amount of concentration. Because she was on the internet she was not undertaking other duties in the home.
Dr Voita accepted that there were inconsistencies in the evidence of witnesses about the appellant’s physical and mental state in the few months before the twins died. Some of the information that she reviewed prior to giving her oral evidence suggested that the appellant’s depression was more severe than Dr Voita had considered at the time she wrote her report. Still, the appellant was able to deal with some visitors and was able to concentrate on the internet. Whilst her housekeeping had deteriorated she was able to care for her other children to some extent. In order to isolate the twins as she did would require a high level of functioning for someone who was severely depressed. Her isolating the twins could not be explained as the behaviour of someone who was apathetic and not engaged. She actively found excuses to prevent people from seeing the children.
“It’s all been downhill since the twins came along and since we moved into the house. We should never have had the twins and we should just get rid of them.”
The appellant’s capacity to undertake such a conversation a few days after she discovered the twins’ deaths does not support the conclusion that she was substantially impaired in a relevant capacity a few days earlier. It was open to the Court on the basis of this and other evidence to conclude that the appellant was not substantially impaired, as alleged, at any relevant time. Even assuming that the evidence supported a finding of a decline in the appellant’s functioning over the weeks leading up to the twins’ deaths, it was nevertheless open to the Court to not be satisfied that she was substantially impaired at the time she did the acts and made the omissions which caused the twins to die.
“Personality factors” and the alleged conflation of “mental illness” and “abnormality of mind”
The Mental Health Court considered evidence that personality factors were involved in the appellant’s actions. It preferred the opinions of Dr Voita and Dr van de Hoef. It also acted on the advice of Dr McVie to accept those opinions, which was to the effect that while depression was present, other psycho-social factors and personality factors resulted in the acts and omissions which led to the deaths of the twins. The Court’s conclusion that it was not satisfied that the appellant’s capacity to control her actions “was substantially impaired solely due to factors related to her abnormality of mind” should be read in that context.
The appellant submits that the Court’s consideration of “personality factors” conflated concepts of “mental illness” and “abnormality of mind”, and failed to consider the evidence which “contextualised those factors as one of the contributors to the abnormality of mind – rather than as providing a separate explanation for [the appellant’s] behaviour.”
Whatever criticisms may be made of the summary contained in Dr Voita’s report in not distinguishing between a “state of mental disease” within the meaning of s 27 of the Criminal Code and an “abnormality of mind” within the meaning of s 304A, the Court did not confuse or conflate these terms. Also, it did not act on Dr Voita’s simple, and arguably inadequate, summary of her opinion about diminished responsibility at the conclusion of her report. It considered the points developed in the body of that report, Dr Voita’s oral evidence and other evidence about personality factors and other matters. Although various psychiatrists gave evidence about personality factors, the appellant’s pre-existing vulnerabilities and other matters that related to the causes of the appellant’s impaired capacity to control her actions and the reasons why she acted as she did, the Court preferred the evidence of Dr Voita and Dr van de Hoef, and the advice of Dr McVie.
The Court did not find, and was not required to find, that “personality factors” contributed to the appellant’s depressed state, being the abnormality of mind relied upon by the appellant and found by the Court. It was open to the Court, on the basis of the evidence and advice which it accepted, to conclude that the appellant’s neglect of her children was due, in part, to the “primitive psychological defences” and personality factors about which Dr Voita and Dr van de Hoef in particular gave evidence. Those witnesses explained how those matters (whether described as “personality factors” or otherwise) and other factors were responsible for the appellant’s state of denial, her actions and her impaired capacity to control those actions. It was open to the Court to conclude that those matters provided an explanation for the appellant’s behaviour and were factors that separately impaired her capacity.
Alleged misunderstanding of the capacity to morally reason
The appellant submits that her Honour’s findings that the appellant did “appreciate at some level that there could be serious repercussions to the twins as a result of not being fed” and that she “knew it was wrong not to care for them adequately” are not responsive to the “test” for the capacity to know that one ought not to do the act or make the omission. These findings are said to address “wrongness” in the abstract, which is not the test.
This contention is misplaced. It is true that in this area of the law a person’s capacity to know that what they are doing is wrong is not decided in the abstract. The question is whether the person was able to appreciate the wrongness of the particular act he or she was doing at the particular time.[15]
[15]The King v Porter (1933) 55 CLR 182 at 189 cited with approval in Stapleton v The Queen (1952) 86 CLR 358 at 367.
The Court did not assess the third capacity stated in s 304A in the abstract. It considered the applicant’s capacity to appreciate at the time when she inadequately fed her twins that this was wrong. There was evidence that the appellant knew it was wrong. She knew it was wrong to malnourish the twins and that she would be in trouble if their malnourished condition was revealed. This was the reason that she took steps to hide them from others, including her other children.
The appellant relies on evidence about her “magical thinking”, particularly that she somehow thought that things would get better. But any such magical or irrational thinking in that regard did not alter her appreciation that what she was doing or omitting to do was wrong. Instead, any such thinking was a forlorn hope that things would get better and her wrongful conduct would not be exposed.
Finally, the appellant submits that the test for “wrongness” was whether the appellant was able to appreciate, at the relevant time, that her inadequate feeding would “kill or nearly kill” her children. I do not agree, and this submission, like a substantial body of the evidence, relates to a different issue, namely whether the appellant foresaw or was aware that the consequences of her actions might lead to death or grievous bodily harm. That issue, and the issue of the intent required to prove murder, were not ones for the Mental Health Court to determine.
It was sufficient for the Court to find that the appellant appreciated at the time she inadequately fed her twins that this would have serious repercussions for them and that her neglect would get them and her into serious trouble. In other words, she knew that her acts and omissions were wrong according to ordinary standards or “the everyday standards of reasonable people”.[16]
[16]The King v Porter (supra) at 190.
Conclusion
In the disastrous situation in which the appellant found herself and in which she placed her twins, the appellant’s capacities to control her actions and her capacity to know that she ought not to do the act or make the omissions which caused their deaths were impaired.
It was open to the Mental Health Court to find that her capacities were not substantially impaired. The appellant has not demonstrated that the decision of the Mental Health Court was in error.
I would dismiss the appeal.
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