R v Adams

[2001] NSWSC 773

CITATION:	R v Adams [2001] NSWSC 773 revised - 12/09/2001
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	SC 70061/99
HEARING DATE(S):	24 - 26 July 2001 30 - 31 July 2001 31 August 2001 7 September 2001
JUDGMENT DATE:	12 September 2001
PARTIES :	Regina Debbie Marie Adams
JUDGMENT OF:	Sperling J at 1

COUNSEL :	T. Hoyle SC for the Crown G. Turnbull for the Accused
SOLICITORS:	K. Thompson for the Director of Public Prosecutions Forsters Solicitors for the Accused
CATCHWORDS:	Criminal Law - special hearing under s18 of the Mental Health (Criminal Procedure) Act - murder reduced to manslaughter, because of substantial impairment - malicious wounding with intent to cause grievous bodily harm - no question of principle
LEGISLATION CITED:	Crimes Act 1900, s5, s23A, s33 Evidence Act 1995, s177 Mental Health (Criminal Procedure) Act 1991, s11A, s16, s18, s19, s21, s21A, s21B, s22, s38
DECISION:	That the following verdicts be entered; (1) On the limited evidence available, the accused did, on or about 25 January 1999, at Warilla in the state of New South Wales, commit the offence of maliciously wounding Dianne Adams with intent to do grievous bodily harm; (2) On the limited evidence available, the accused did on 23 July 1999, at Haberfield in the state of New South Wales, commit the offence of manslaughter of Scott Bremner.

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES

CRIMINAL DIVISION

Wednesday 12 September 2001

SPERLING J

70061/99 Regina v Debbie Marie Adams

Judgment

1    The accused, Debbie Marie Adams, stands charged that she -

(1) on or about 25 January 1999, at Warilla in the State of New South Wales, did maliciously wound Dianne Adams, with intent to do grievous bodily harm to Dianne Adams.
(2) on 23 July 1999, at Haberfield in the State of New South Wales, did murder Scott Bremner.

2    The accused was born on 11 August 1982. On 25 January 1999, she was 16 years of age. On 23 July 1999, she was not yet 17 years of age.

3    Dianne Adams is the accused’s mother. On 26 January 1999, the accused was taken into custody. She was detained at Yasmar Juvenile Justice Centre. There, she attended the Sunning Hill school. Scott Bremner was a TAFE employee who worked in the school.

4    The first charge was initially one of attempt murder. It was later amended to malicious wounding.

5 The accused was arraigned before this court in relation to both matters. On 13 November 2000, Dunford J determined that the accused was unfit to be tried, pursuant to s 11A of the Mental Health (Criminal Procedure) Act 1990.

6 On 30 March 2001, the Mental Health Review Tribunal determined, pursuant to s 16(1), that the accused would not, during the period of 12 months after the finding of unfitness, become fit to be tried for the alleged offences. On 11 May 2001, the Attorney General, pursuant to s 18, ordered that a special hearing be conducted.

7    The provisions of the Mental Health (Criminal Procedure) Act 1990 relating to a special hearing are as follows, so far as is presently relevant.

19(1) If the Attorney General directs that a special hearing be conducted in respect of an offence with which a person is charged, the appropriate Court must, as soon as practicable after the Attorney General so directs, conduct a special hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.
21. (1) Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.
(2) . . . . .
(3) At a special hearing:
(a) the accused person is to be taken to have pleaded not guilty in respect of the offence charged; and
(b) . . . . .
(c) without limiting the generality of subsection (1), the accused person may raise any defence that could be properly raised if the special hearing were an ordinary trial of criminal proceedings; and
(4) . . . . .
21A(1) At a special hearing, the question whether an accused person has committed an offence charged or any offence available as an alternative to an offence charged is to be determined by the Judge alone if the person so elects in accordance with this section and the Judge is satisfied that the person, before making the election, sought and received advice in relation to the election from a barrister or solicitor.
(2) An election may be made only with the consent of the prosecutor.
(3) An election must be made before the date fixed for the person’s special hearing in the Supreme Court or District Court.
(4) An accused person who elects to have a special hearing determined by the Judge alone may, at any time before the date fixed for the person’s special hearing, subsequently elect to have the matter determine by a jury.
(5) Rules of court may be made with respect to elections under this section.
21B. (1) The verdicts available to a Judge who determines a special hearing without a jury are the verdicts available to a jury under section 22. Any such verdict has, for all purposes, the same effect as a verdict of a jury.
(2) A determination by a Judge in any such special hearing must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
22. (1) The verdicts available to the jury or the Court at a special hearing include the following:
(a) not guilty of the offence charged;
(b) not guilty on the ground of mental illness;
(c) that on the limited evidence available, the accused person committed the offence charged;
(d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.
(2) . . . . .
(3) A verdict in accordance with subsection (1) (c) or (d):
(a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates; and
(b) subject to section 28, constitutes a bar to further prosecution in respect of the same circumstances; and
(c) . . . . .

8    The special hearing was conducted before me without a jury, the provisions of s 21A having been complied with.

9    The special hearing commenced on 24 July 2001 and concluded (subject to limited written submissions and possible further evidence) on 31 July 2001. At the hearing Mr T Hoyle SC, appeared for the Crown. Mr G Turnbull appeared for the accused. I was informed by the Crown that further short evidence would be called. That was done on 31 August 2001.

10    The court was informed, at the commencement of the hearing, that there was no objection to the two charges being heard and determined concurrently.

11    In each case, the actus reus was admitted by counsel on behalf of the accused. That was, in each case, stabbing with a knife.

12 In relation to the second charge the partial defence of substantial impairment by abnormality of mind was raised pursuant to s 23A of the Crimes Act 1900, which provides as follows:

23A(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.
(3) . . . . .
(4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.
(5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead.
(6) . . . . .
(7) . . . . .
(8) In this section: underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind.

13 A defence of mental illness pursuant to s 38 of the Mental Health (Criminal Procedure) Act 1990 was not raised. Under the principles that apply and on the evidence of the psychiatrists given at the hearing, no such defence was available.

14    A notified defence of automatism was not pressed. That too was an appropriate decision. The defence was not sustainable on the evidence.

The First Charge

15    I apply the following legal principles in relation to the first charge. The crime of maliciously wounding with intent to do grievous bodily harm (Crimes Act 1900, s 33), as charged, consists of the following elements or ingredients, all of which must be found to be the fact beyond reasonable doubt for the accused to be convicted of that crime in this case: that the accused wounded the victim; maliciously; and with intent to do grievous bodily harm to the victim. “Maliciously” comprehends (so far as is necessary for present purposes) an act done with intent to injure and without lawful cause or excuse: s 5. (No issue was raised as to lawful cause or excuse.) “Wound”, for present purposes, has its ordinary meaning. “Grievous bodily harm” means really serious injury.

16    The evidence in relation to this count consisted of witness statements by the following persons:

(a) Pauline O’Grady, the accused’s foster mother since 16 December 1994.

(b) Anne Clark, resident at the accused’s mother’s former place of residence at the time of the incident.

(c) Robert Clark, husband of Anne Clark and also a resident at the accused’s mother’s former place of residence at the time of the incident.

(d) Dianne Adams, the accused’s mother.

(e) Ian Parks, de facto partner of the accused’s mother and resident with her at the time of the incident.

(f) Terrie Adams, half-sister of the accused and daughter of Dianne Adams, also resident with her at the time of the incident.

(g) Kellie Adams, half-sister of the accused and daughter of Dianne Adams and Ian Parks, also resident with them at the time of the incident.

(h) Kim Gulevski, next-door neighbour of the accused’s mother at the time of the incident.

(i) Christina Gulevski, daughter of Kim Gulevski and resident with her at the time of the incident.

(j) Jeanette Williams, neighbour of the accused’s mother at the time of the incident.

(k) Barbara Nolan, neighbour of the accused’s mother at the time of the incident.

(l) June Grindle, neighbour of the accused’s mother at the time of the incident.

(m) Tony Grindle, husband of June Grindle and resident with her at the time of the incident.

(n) Shelley Bailey, neighbour of the accused’s mother at the time of the incident.

(o) Sergeant Dennis Hughes, one of the police officers called to the scene on 25 January 1999.

(p) Senior Constable Robert Gonzalez, one of the police officers called to the scene on 25 January 1999.

(q) Adam Sawyer, the young man approached by the accused at Wollongong railway station on 26 January 1999 after the incident on 25 January 1999.

(r) Constable Glenn Cairns, one of the police officers who attended Wollongong railway station on 26 January 1999.

(s) Sergeant Patrick O’Brien, one of the police officers who attended Wollongong railway station on 26 January 1999.

(t) Detective Sergeant Robert Harbin, a police officer who spoke to the accused’s mother, Terrie Adams, Kellie Adams and Ian Parks on 26 January 1999. This includes a transcript of the record of interview.

(u) Authority to take hair / blood from the accused, 26 January 1999.

(v) Doctor Ron Bezic, medical practitioner who attended the accused’s mother on 26 January 1999. This is an expert certificate under s 177 of the Evidence Act 1995.

17    None of these witnesses was required to give oral evidence or to attend for cross examination. The facts relating to the first charge are not in dispute. The following statement of facts appears in Exhibit D, a written submission document submitted by the Crown.

At about 10.30pm on 25 January 1999 the accused who was then aged 16 years and a ward of the state left the home of her cares [ sic ] situated at 11 Shellharbour Road, Dunmore and travelled to her natural mother’s home at 3 Bradman Street, Warilla.
She took with her a bread knife belonging to her carers.
At about 11.45pm the accused forced her way into her mother’s house and started swinging the knife towards Ian Parks, her mother’s current de facto. He fled the house.
Her mother then sat on the lounge. The accused swung the knife at her mother whilst saying, “Do you really want me to kill you”. She then placed the knife under her mothers arm, giving it a little push whilst saying, “When do you want me to stab you?” The accused then said, “I am going to kill you before the police and welfare get to me”.
The accused then started to walk into the kitchen. Her mother ran outside chased by the accused who was screaming, “I’m gonna kill ya, I’m gonna kill ya”.
Her mother felt a sharp pain in the side of her neck. She was able to run to a neighbour’s house where she obtained help.
The accused made her way to Wollongong Railway Station where she approached and introduced herself to Adam Sawyer (18 years old) as Melanie. She told Sawyer, “I’m on the run from the police... because I stabbed my mum in the back twice... I have wanted to do it for a long time due to being abused when I was younger by my mother and her boyfriend...”
The accused showed the knife to Sawyer. He noted that there was blood on the blade. She put the knife away and Sawyer asked her where it had happened. The accused said, “At her place at Warilla... I hope I killed the bitch or if I didn’t I will go back and try to stab her until she is dead...”
Sawyer left the railway station and contacted police. A short time later police attended the station where they apprehended the accused. She was taken to Warilla Police Station where she was interviewed in the presence of her carers and an Aboriginal Community Liaison officer. She denied being at her mother’s house and denied any knowledge of the knife that was found in her possession when arrested.
Her mother received a superficial laceration over the side of her right Scapula. The wound was sutured and she was allowed to return home.

18    Having regard to the evidence before me, I find those facts.

19    I find, on the limited evidence available, that the accused committed the offence in the first charge.

The Second Charge

20    I apply the following legal principles in relation to the second charge. The crime of murder has been committed by the accused if the Crown has established, beyond reasonable doubt, that it was the act of the accused which caused the death of the deceased and that that act was done with an intention to kill the deceased or to inflict grievous bodily harm upon him. “Grievous bodily harm” means really serious physical injury.

21    If the Crown has established those matters beyond reasonable doubt, the accused has committed the crime of murder unless she has established the partial defence of substantial impairment by abnormality of mind, in which case, the crime of murder is reduced to manslaughter. The partial defence of substantial impairment by abnormality of mind is successful if the accused has established (a) that more probably than not, at the time of her act causing the death of the deceased, her capacity to understand events or to judge whether her actions were right or wrong or to control herself was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) that such impairment was so substantial as to warrant her liability for murder being reduced to manslaughter. An abnormality of mind occurs if the accused’s capacity to function in any of those ways deviates from the normal range of variation in how people so function. It is not sufficient if the condition is merely transitory, but it does not have to be a permanent condition.

22    The evidence in relation to this count consisted of witness statements by the following persons, some of whom also gave oral evidence.

(a) Plain Clothes Constable Todd Pickering (inc. ERISP), one of the police officers called to the scene on 23 July 1999. He also gave oral evidence. He also gave evidence in relation to the unavailability of several other witnesses.

(b) Detective Senior Constable (now Acting Inspector) Paul Birch, one of the police officers called to the scene on 23 July 1999. He also gave oral evidence.

(c) Karen Holmes, a teacher at Sunning Hill School for Specific Purposes situated at Yasmar Juvenile Justice Centre, who was present in the classroom when the incident occurred on 23 July 1999. There was evidence explaining why this witness could not be called to give oral evidence.

(d) Karen Horsley, a teacher’s aide at Sunning Hill, who was present in the classroom when the incident occurred on 23 July 1999. She also gave oral evidence.

(e) Nicole Zarglis, a detainee at Yasmar at the time of the incident, who was present in the classroom when the incident occurred on 23 July 1999. There was evidence explaining why this witness could not be called to give oral evidence.

(f) Christina Ernest, a detainee at Yasmar at the time of the incident, who was present in the classroom when the incident occurred on 23 July 1999. There was evidence explaining why this witness could not be called to give oral evidence.

(g) Honora Taufahema, a detainee at Yasmar at the time of the incident, who was present in the classroom when the incident occurred on 23 July 1999. She also gave oral evidence.

(h) Rima Pacey, a detainee at Yasmar at the time of the incident, who was present in the classroom when the incident occurred on 23 July 1999. She also gave oral evidence.

(i) Cindy Semi, a detainee at Yasmar at the time of the incident, who was present in the classroom when the incident occurred on 23 July 1999. There was evidence explaining why this witness could not be called to give oral evidence.

(j) Marlene Phillips, an Aboriginal Education Assistant at Sunning Hill, who was present in the classroom immediately after the incident occurred on 23 July 1999.

(k) Heather Dunbar, a Visual Arts teacher at Sunning Hill, who taught a current affairs class attended by the accused immediately prior the cooking class at which the incident occurred on 23 July 1999.

(l) Constable Catherine Herbert, one of the police officers called to the scene on 23 July 1999.

(m) Probationary Constable Martin Ha, one of the police officers called to the scene on 23 July 1999.

(n) Constable Cheryl Day, a police officer who searched the accused in custody at Burwood Police Station on 23 July 1999.

(o) Probationary Constable Kim Marshall, a police officer who searched the accused in custody at Burwood Police Station on 23 July 1999.

(p) Peter Economou, an ambulance officer who attended Yasmar after the incident on 23 July 1999 and administered treatment to the deceased.

(q) Sean Kearns, an ambulance officer who attended Yasmar after the incident on 23 July 1999 and administered treatment to the deceased.

(r) Dr Peter Bradhurst, the pathologist who performed the autopsy on the deceased on 24 July 1999 at the NSW Institute of Forensic Medicine, Glebe. This was his Autopsy Report.

(s) Dr David Joseph, the doctor who attended the deceased on arrival in the Emergency Department of Royal Prince Alfred Hospital on 23 July 1999.

(t) Constable Stephen Knight, a police officer who attended Royal Prince Alfred Hospital to examine the body of the deceased on 23 July 1999.

(u) Constable Jamie Porter, a police officer who attended Royal Prince Alfred Hospital to examine the body of the deceased on 23 July 1999.

(v) Marcia Vallance, Principal of Sunning Hill at 23 July 1999 and currently - she also gave oral evidence.

(w) Adam Hughes, Acting Assistant Principal of Sunning Hill at 23 July 1999. He also gave oral evidence.

(x) Tau Tuala, a senior youth worker at Yasmar, who was present in the classroom immediately before and after the incident occurred on 23 July 1999. He also gave oral evidence.

(y) Helen Denaro, a teacher’s aide at Sunning Hill, who was present in the classroom immediately after the incident occurred on 23 July 1999. She also gave oral evidence.

(z) Heather Shield, a registered nurse at Yasmar, who attended the deceased in the classroom immediately after the incident occurred on 23 July 1999. She also gave oral evidence.

(aa) Constable Robert Burlin, a police officer who took statements from some of the witnesses to the incident on 23 July 1999 and subsequently took part in further investigations.

(ab) Michael Vera-Lobos, a senior youth worker at Yasmar, who escorted the accused to the cooking class where the incident occurred on 23 July 1999, and who escorted her to the holding room after the incident. He also gave oral evidence.

(ac) Janette Noujaim, a senior youth worker at Yasmar, who was present in the classroom immediately after the incident occurred on 23 July 1999. She also gave oral evidence.

(ad) Bernadette O’Connor, Manager of Yasmar at 23 July 1999.

(ae) Stuart Baron, an ambulance officer who attended Yasmar after the incident on 23 July 1999 and administered treatment to the deceased.

(af) Martin Hughes, Co-ordinator of Operations at Yasmar at 23 July 1999.

(ag) Detective Senior Constable Van Leeuwen, a police officer who attended the post mortem examination of the deceased on 24 July 1999.

(ah) Detective Sergeant David Hurst, a police officer who attended the classroom where the incident occurred on 23 July 1999 and conducted an examination of the scene.

(ai) Suzanne Briese, scientist at the Institute of Clinical Pathology and Medical Research, Westmead Hospital who examined the knife used in the stabbing.

23    In addition, the Crown tendered, without objection, medical reports by Dr Stephen Koder, Dr A. H. Muul, Dr Luke Baker, Dr J. C. Walsh, Dr Keith Lethlean, Dr Jean Starling (three reports), Prof. Stewart Einfeld, Dr Westmore (four reports) and Dr Waters. Along with this material were related reports by Sherrill Spears, Senior Clinical Psychologist with the Illawarra Area Health Service; Margaret Wilke, Case Manager - Adolescent Community Options at Barnardos Australia; Dawn Bendall, District Officer with DOCS; Ken Buttrum, Director-General of the Department of Juvenile Justice; and the Mental Health Review Tribunal, as well as a copy of the Attorney-General’s direction for a special hearing.

24    Counsel for the accused tendered, without objection, medical reports by Dr Sara Williams (six reports), Dr Steve Hartman (four reports) and Dr J. D. G. Watson. Along with this material were related reports by DOCS (a “permanency planning worksheet”); Barnardos (a file review); Glenn Ogden, speech pathologist; Janice Homschek, Psychologist / Co-ordinator at Illawong Child Protection Unit; J. Axford-Brooks, Psychologist / Co-ordinator at Illawong Child Protection Unit (two reports); Sherrill Spears, Senior Clinical Psychologist with the Illawarra Area Health Service; Jacqueline Cope, Psychologist with the Wellspring Centre, Wollongong (two reports); Michelle Tremain, psychologist, and a report titled “Documentation of Psychological Contact” the provenance of which is not stated, but which possibly originated from the Department of Juvenile Justice.

25    Some of this material went to the defence of substantial impairment. A good deal of it went to issues which would arise if a finding were made that the accused committed the offences charged or an alternative offence. It was convenient and sensible to tender the evidence in this way without regard to that distinction.

26    The basic facts relating to the second charge are not in dispute. The following statement of facts appears in Exhibit D, a Crown submission document.

After being charged with the offence relating to her mother, the accused was placed into custody at Yasmar Detention Centre. On 23rd July 1999 she attended a TAFE cooking class held at Yasmar. During the class she was seen by a number of other attendees to take a large kitchen knife and stab the course teacher, Scott Bremner, in the back. Mr Bremner died later that day during surgery at RPA Hospital.
The accused was arrested by police but, upon advice, declined to be interviewed.

On the evidence before me, I find those facts.

27    A fuller statement of facts appears in a written outline of argument submitted by the Crown. It was not disputed by counsel for the accused.

1. On Friday 23rd July 1999 the accused was one of six detainees enrolled in a cooking class held at the Sunning Hill Education and Training Centre that is located within the grounds of the Yasmar Juvenile Justice Centre at Haberfield.
2. The cooking class was conducted by employees of the Department of Education and Training. The deceased was employed as a storeman with TAFE and was present that morning to assist with the class.
3. Each detainee was given a toolbox that contained a knife. The accused was noted to become very excited and hyper active when handed her knife. At recess she made a comment to the assistant principle (Gerard Hughes [ sic for Adam Hughes]) that she was going to stab him whilst at the same time, making a movement with her hand simulating a stabbing motion. Around the same time she told another detainee (Rima Pacey) that she was going to stab Scott (the deceased). She also told Honora Taufahema that she was going to stab Lauren Freshwater.
4. Shortly after recess (about 11.20am) and whilst receiving tuition on how to cut vegetables the accused begun to walk a few paces backwards and forwards (twice) before walking about 10 paces to where the deceased was standing. The accused carried the knife in her hand that she held down beside her body with the blade pointing towards the floor. She stood behind him raised the knife in both hands to the same height as her head before bringing her hands down so that the knife penetrated into the deceased’s back.
5. As the accused started to move away she threw the knife in the direction of the deceased. She also threw some vegetables in the direction of the deceased.
6. The deceased was given first aid and then conveyed to Royal Prince Alfred Hospital. He died at 3.47pm whilst undergoing emergency surgery.
7. The accused was removed from the classroom and placed inside a holding room. Whilst in that room she was seen and heard to direct the following questions and statements to Tau Tuala (Youth Worker)

· Do you think he felt it

· Do you think it hurt

· Good job, eh, good job.

· I only did it because the other girls told me to do it. It wasn’t even supposed to be him. It was supposed to be someone else but he was there.

28    On the evidence before me, I find those facts with one exception. In relation to the threat to Mr Hughes, I find that, whatever passed between the accused and Mr Hughes was said in a jocular tone. Mr Hughes did not believe there was any threat by the accused directed towards him. I do not find that any such threat was made or intended by the accused.

29    By way of further detail, counsel for the accused has submitted (in a supplementary written submission) that I should make certain further findings of fact relevant to the defence of substantial impairment. They are as follows. As at 25 January 1999, when the accused stabbed her mother, she was facing two separate charges of carrying a concealed weapon (knives). Whilst detained at Yasmar, she came under notice for theft of a needle, theft of a knife, having a sharp piece of wire and striking a worker with a leather-working tool. According to Ms Zarglis, another inmate, the accused got hold of sharp things, she liked sharpened sticks and had a spear in her room. According to Ms Zarglis, that the accused talked frequently of stabbing things and stabbing people, and of an intention “to finish off her mother”. According to Ms Pacey, the accused was fascinated with knives, always “talking about them and goes hypo” (which I take to mean very aroused). According to Mr Semi, the accused became “really excited” around knives and wanted to use them on someone, she also became excited about other sharpened things. Ms Tuala agreed in her evidence at the special hearing that sharp objects and knives “got her [the accused] going”.

30    The Crown did not oppose those additional findings, being made. On the evidence before me, I find those facts.

31    I find that, prior to 23 July 1999, the accused had evidenced a fascination for knives and other sharp objects and became highly aroused in relation to them. There is a substantial prior history of incidents involving violence or threat of violence directed by the accused towards others. There are 21 such incidents recorded in the DOCS file, between November 1998 and June 1999. Such instances of violence were difficult to control. Ms Phillips spoke of incidents invariably “accelerating to a point where she [the accused] had to be removed from class or remove herself”. Mr Vera-Lobos was apprehensive about the accused to be attending the cooking class on 23 July 1999 because of her history. That was the background.

32    It is apparent that on 23 July 1999, before going to the cooking class, the accused was in a state of high arousal, related to the opportunity to handle a knife or knives. The accused was, according to Ms Tuala, “very excited and kept asking Michael and myself about the knives in the class”. She said, “Are there any knives in the class?” and “Do I get one, do I get one?”. She asked that in an agitated fashion.

33    Chef’s uniforms were available at the classroom. The accused put one on. Ms Zarglis said that the accused was “really excited because she was wearing a uniform and saw the knives.” Others also spoke of the accused being excited about being in the chef’s uniform. Use of knives was to be at the end of the class session but, according to the teacher’s assistant, Ms Horsley, each student was given a box at the start of the class which contained two knives. Ms Zarglis and Ms Horsley saw the accused holding a large knife before the mid-morning break. They said she was smiling.

34    During recess, Mr Vera-Lobos, who was team leader of the youth workers that day, was called in because the accused was “hyped up”, “over the top”. He had seen her that way before. She was running around. She said, “You should see the knives they have given me”, indicating the size of the knives with her hands. She talked about how easy it would be to stab someone, making stabbing motions with her hands. “She kept going on about knives,” he said, until he distracted her by changing the subject. She then appeared to calm down.

35    Others also said that, during the recess, the accused was excited about having been given a knife and about it being a big knife. She told Ms Semi that she intended to stab another inmate, Lauren Freshwater.

36    After recess, the students were taken back to the classroom. Knives were sharpened, and chopping vegetables began. Ms Horsley and Ms Holmes saw the accused stabbing her knife into the chopping board and Ms Holmes told her stop that. It was shortly after that that the accused stabbed the deceased.

37    Immediately before the stabbing, Ms Zarglis noticed that the accused was “smiling and nodding her head up and down”. Ms Zarglis said that, when the accused had that look, “that means she will go off”. Ms Horsley also spoke of the accused “showing a funny face”, which she said was “maybe a negative look on her face like maybe she really didn’t like the look of both of us possibly”. There was apparently something strange about the accused’s demeanour which the witnesses had difficulty describing.

38    It was then that the accused walked behind the deceased, holding the knife by her side, and stabbed him in the back.

39    Following the stabbing the accused attacked a cardboard box containing vegetables and threw the vegetables. She had to be forcibly restrained.

40    I find on the evidence, that the accused had a pathological fascination for knives. I find that, on the day of the stabbing and at the time of the stabbing of the deceased, the accused was in a highly aroused state, initiated by access to and the handling of a large kitchen knife or knives.

41    I find that, absent the partial defence of substantial impairment, the charge of murder would be established.

42    The psychiatric evidence was uniformly supportive of the defence of substantial impairment, on the ground that, at the time of her act, the accused’s capacity to control herself was substantially impaired by an abnormality of mind arising from an underlying condition. The psychiatrists did not support the defence on the ground of impairment of capacity to understand events or on the ground of the accused’s capacity to judge whether her actions were right or wrong.

43    The psychiatric evidence was as follows. Dr B Westmore was retained by the Crown initially on the question of unfitness to be tried and subsequently in relation to potential defences to the charge of murder. He interviewed the accused on 11 August 1999 (reports 12 August 1999 and 16 November 1999), on 16 October 2000 (report 19 October 2000) and on 20 February 2001 (report 23 July 2001). The interview on 11 August 1999 had to be terminated part way through when the accused struck the doctor on the head, spontaneously and unprovoked. The doctor’s opinion in August 1999 - perhaps validly influenced by personal experience - was that the accused was “severely disturbed psychologically” and “extremely dangerous”. Dr Westmore concluded his report of 23 July 2001 as follows.

As you can see from this report and my previous documents, Ms Adams is an extremely disturbed person psychologically. She is intellectually disadvantaged I believe but suggesting to what degree is difficult on the contact I have had with her, Behaviourally she is extremely disturbed and it is possible, indeed probable, that she has a psychotic illness.
. . . . .
It is likely this young person has an extreme personality disorder along with the other problems of intellectual disadvantage, social immaturity and a possible psychotic illness.
With regard to the availability of psychiatric defences, or otherwise, to the charge of murder, I am unable to find any clear evidence to support a mental illness defence. That is, while she may be showing signs of mental illness at this time, I can find no direct or positive relationship between those possible psychotic disturbances and the stabbing of the man Scott.
She does however, in my view, qualify for consideration for the defence of substantial impairment. This young woman suffers an abnormality of mind (a severe personality disorder). In my opinion the abnormality of mind would have, on the balance of probabilities, substantially impaired her capacity to control her actions on the day she stabbed the man Scott.

44    The following are extracts from Dr Westmore’s oral evidence. At Transcript 178:

Q. In that regard you’re of the view she suffered from an abnormality of the mind?
A. Yes.
Q. Is it possible, in your opinion, to qualify that or quantify it in terms of mild, modern or severe?
A. She has an extreme severe personality disorder, I think of a borderline type with some antisocial properties to it. It is a severe disorder that she has.

Transcript at 180:

Q. Is it fair to say that on 23 July, when one looks at the events and the context within which she found herself, that there is certainly a suggestion that she would have been more than likely in an acute state of arousal, would you agree?
A. Yes, probable, yes.
Q. As a result, given the context which created the arousal, her severe personality disorder, you were of the clear view that her ability to control herself in those circumstances was substantially impaired?
A. Yes.

Transcript at 186:

Q. Therefore I ask you: what effect on the abnormality of mind that you have been speaking of might there have been in July of 1999, from her age and her sexual maturation, any effect or effect or no effect?
A. Because her behavioural disturbances are so extreme, and although it is out of the usual to make a diagnosis at such a young age - she was 16 I think when the incident occurred - I believe it is valid to make the diagnosis in this case because the characteristics she displayed and the disturbances she displayed are so clearly defined, there is very little vagueness about them, and I feel safe making the diagnosis, and I think the personality disorder which she has now was present then and it will be present for many years to come.

Transcript at 186-187:

Q. This is a case, isn’t it, where there are a variety of complex factors all having intermingling effect, such that it is very hard to chop up your diagnosis into specifically the abnormality of mind and specifically the underlying condition; is that the situation?
A. Yes. Well, the abnormality of mind arises from the underlying condition, which is the personality disorder. The abnormality of mind is reflected in her behavioural disturbances, her impulsivity, her lack of judgment, her lack of boundaries, the uncontained aggression, emotional aggression that she displays; the intense attachments, and probably associated devaluation that she would have of people, so the abnormality of mind is really a mirror arising, a mirror reflection of this personality disorder that she has.

45    Dr R Wilcox was retained on behalf of the accused, initially on the question of unfitness to be tried and later in relation to possible defences. She examined the accused on 19 January 2001 (report 28 February 2001), and on 16 July 2001 (reports 16 July 2001 and 25 July 2001). She concluded her report of 16 July 2001 as follows:

I do not believe that Ms Adams would satisfy the criteria for a mental illness defence. However I feel that when she stabbed the teacher she was suffering from an abnormality of the mind that occurred as a result of an underlying condition and the underlying condition was a dissociative form of post-traumatic stress disorder. As a result of this abnormality of the mind her capacity to control herself was substantially impaired. Whether the capacity was so substantial as to warrant liability for murder being reduced to manslaughter is something for the court to decide.

46    The following are extract from her oral evidence. Transcript at 193-194:

Q. You have spoken to Doctor Westmore today?
A. I have.
Q. You have heard him give evidence in relation to his findings and be cross-examined and so forth?
A. Yes I have.
Q. Doctor, in relation to the conclusion he comes to, upon which he gave evidence and was cross-examined, do you agree with the conclusions of Doctor Westmore?
A. There is nothing that Doctor Westmore said that I strongly disagree with. It was a matter of some minor things but basically we are in concordance, yes.
Q. You are of the view the accused suffers from an abnormality of mind?
A. Yes, I believe so.
Q. Your conclusion in relation that abnormality of mind is what, what is the accused suffering from?
A. Well, I similarly agree with Doctor Westmore. The abnormality of mind is a reflection of a whole degree of conditions and combinations, at least including a severe personality disturbance, delayed disability and developmental disability and a degree of post-traumatic stress disorder as well. I think it is a combination of these three factors.

Q. You have described part of the condition as being post-traumatic stress disorder, is that the case?
A. Well, I mentioned that a lot of the symptoms that I elicited from Miss Adams, from Debbie, were indicative of more complex post-traumatic stress disorder, that has been associated with people that have been the victims of abuse.

Transcript at 196:

Q. You have heard Doctor Westmore specifically indicate that in his view at the time of the commission of the act against Mr Bremner the accused, by reason of her abnormality of mind, had her ability to control herself substantially impaired, is that something with which you would agree?
A. That is something how I would perceive it myself, too.

47    Dr Brown, psychiatrist, was also called in the accused’s case. She has been the accused treating psychiatrist since the accused was transferred to Mulawa Correctional Centre in July 1999. The following are extracts from her evidence.

Transcript at 201:

Q. And it is the situation, isn’t it, that as the accused’s treating doctor you have formed a view as to her current condition, in terms of diagnosis?
A. Yes, I have.
Q. What is that diagnosis?
A. In concordance with Dr Westmore and Dr Wilcox, my primary diagnosis was that of a personality disorder with borderline and antisocial features, but over time I have also come to an additional diagnosis, that of either being a chronic post-traumatic stress disorder or a disassociative disorder.

Transcript at 202:

Q. You have had the opportunity to listen to both Dr Wilcox and Dr Westmore give evidence?
A. I have.
Q. And you agree with their conclusions; is that the situation?
A. Yes.

48    I find that the accused’s capacity to control herself, at the time of her act, causing the death of the deceased, was substantially impaired by an abnormality of mind arising from an underlying condition, namely, severe personality disorder. I further find that such impairment was so substantial as to warrant her liability for murder being reduced to manslaughter.

49    Accordingly, I find, on the limited evidence available, that the accused committed the offence of manslaughter, being an offence available as an alternative to the offence with which she is charged.

50    I direct that the following verdicts be entered:

(1) On the limited evidence available, the accused did, on or about 25 January 1999, at Warilla in the state of New South Wales, commit the offence of maliciously wounding Dianne Adams with intent to do grievous bodily harm;
(2) On the limited evidence available, the accused did on 23 July 1999, at Haberfield in the state of New South Wales, commit the offence of manslaughter of Scott Bremner.
-oOo-

Last Modified: 10/18/2013