R v Barolia (No. 3)

[2021] NSWDC 697

District Court

New South Wales

Medium Neutral Citation:

R v Barolia (No. 3) [2021] NSWDC 697

Hearing dates:

14 September 2021

Date of orders:

14 September 2021

Decision date:

14 September 2021

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Special verdict of act proven but not criminally responsible.

Catchwords:

Crime – Reckless Wounding.

Actus reus not disputed – Whether mens rea exists – Whether accused entitled to a special verdict of act proven but not criminally responsible.

Legislation Cited:

Crimes Act 1900

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Mental Health (Forensic Provisions) Act 1990

Cases Cited:

R v M’Naghten (1843) 8 ER 718

R v Porter (1933) 55 CLR 182

Texts Cited:

American Psychiatric Association, Diagnostic and statistical manual of mental disorders: DSM-5 (5th edition, 2013, American Psychiatric Association).

Category:

Principal judgment

Parties:

Regina – Crown
Defendant – Muntaj Bagam Barolia

Representation:

Crown – D. Waldmann (ODPP)
Defendant – T. Kent instructed by National Criminal Lawyers

File Number(s):

2019/00382466

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: The accused has been charged on indictment that on 4 December 2019 at Illawong in this State she did recklessly wound Moshin Barolia. That is an offence contrary to s 35(4) of the Crimes Act 1900.

2. The parties have agreed on facts and there is evidence in addition to the agreed facts, before me relating to both the factual background and the accused’s mental state.

3. The accused was born in July 1962. She was at the time of the offence alleged 57 years old. The victim of the assault, Moshin Barolia, is the son of the accused and her husband Mahmood Barolia. At the time of the assault upon him the victim was 26 years old.

4. Moshin has severe intellectual and physical disabilities. They include plagiocephaly, microcephaly, spastic diplegia, which is also known as diplegic cerebral palsy, with contractures of his ankles and knees. He is non-verbal except for three words. Those three words identify his mother the accused, his father and his sister. Moshin can only stand or walk with assistance and can only leave the family home in a wheelchair. He is able to crawl around the house.

5. It is agreed that the accused is the primary carer for the victim. He also receives care from a care provider from Monday to Friday.

6. There is in evidence a statement of Rejina Karki. She is employed as a private care provider by a non-profit, non-government care provider retained by the NDIS. She has been caring for Moshin for two years prior to the offence. Her statement contains this matter:

“10. My support to Mohsin include, daily support and personal hygiene, feeding, supporting him, supporting [his] family including mother Muntaj, to take him to appointments. At the moment I am scheduled to work with Mohsin five days a week, Monday to Friday. Previous to this there was another helper and I worked five days a fortnight with Mohsin.

“11. I have come to know the Barolia family well in my time working for Mohsin. Muntaj Barolia is Mohsin’s mother and his father Mahmood Barolia, both are in their late 50’s . Mahmood works whilst Muntaj stays home and cares for Mohsin. Both are very helpful and caring for Mohsin and I have never heard either of them complaining anything about Mohsin.

12. On Wednesday 4 December 2019, I was scheduled to attend training outside my work duties, the training was from 8am until 11.30am, there was no-one else scheduled to assist the Barolias on this day. When I informed the Barolia’s about my training they asked if I would be able to come and assist them afterwards as Muntaj had gone in for a procedure, a gastroscopy and colonoscopy the day prior and would need some assistance. Mahmood knowing, I do not drive told me to save time and he could pick me up and help after my training. I agreed to help out.”

7. It can be seen from that evidence that the NDIS had been providing support to the Barolia family for two years prior to the events now in question. That means that for the first 24 years of his life Mohsin was primarily cared for by the accused.

8. On Tuesday 3 December 2019 the accused attended St George Private Hospital where she underwent surgery being a gastroscopy and a colonoscopy. I shall return to that issue a little later. An anaesthetic was administered to her intravenously. She was totally anaesthetised as I understand it. At the time of the surgery the accused weighed between 41 and 42 kilograms. She is only a very slight, petite lady. After the surgery the accused was discharged from hospital on the day it was performed about 2.20pm. She was picked up by her husband and taken to their family home at Illawong.

9. On 4 December 2019, about 10.30am, Mahmood Barolia left the family home at Illawong to see a client and to pick up Rejina Karki, his carer, who lived at Revesby all before 11.30pm. Whilst Mahmood was involved in those tasks the accused and Mohsin remained in the house. At some time between Mr Mahmood Barolia leaving the house and about 11.15am the accused struck the victim multiple times with a knife to his neck and back causing Mohsin to sustain wounds and lacerations. In evidence are photographs indicating that the knife was a relatively large kitchen knife but the length of the blade I cannot discern from the photograph. The knife has a serrated lower blade and appears to be some form of carving knife. At 11.15am the accused telephoned her husband. She said to him,

“I don’t know what I have done, I picked up a knife and slashed through his back”.

She also said to her husband,

“Blood is coming out, I throw the knife, I don’t know what I have did”.

10. At about 11.30am Mahmood Barolia and Ms Karki arrived at the house. It is clear from Ms Karki’s statement that Mr Mahmood Barolia picked her up about 11.18am. She immediately thought that something was wrong by some unusual behaviour from Mahmood. When Mahmood Barolia picked Ms Karki up he said to her “did you know Muntaj did a stupid thing?”. When Ms Karki replied “No”, Mr Barolia then said to her “I asked her what she had done and she said to me “I have done a stupid thing. I went at Mohsin with a knife and cut his neck”. Ms Karki then asked Mr Barolia who told him that and he said that his wife had told him that.

11. She confirms that they arrived at the Barolia family home in Illawong about 11.30am. Ms Karki entered the house with Mr Barolia and stayed near the door. She could look directly inside the loungeroom and she saw blood on the floor. She noticed a large kitchen knife and a pair of silver scissors with red handle lying on the tiles in the blood. The knife was covered with blood but the scissors did not have any blood on them. She then moved into the house and saw the accused and Mohsin together. Mohsin was on the lounge and Muntaj was in front of him. Muntaj’s clothes had blood on them and her hands were also covered in blood. She saw blood coming from the lacerations to Mohsin’s neck. Muntaj then said to Ms Karki,

“I don’t know how I did this, I love Mohsin, I’m sorry.”

Mahmood then went to comfort his wife.

12. Ms Karki was asked to help the Barolia’s with their son and was asked to put pressure on him, no doubt to attempt to stem the bleeding. She declined to do that but did provide towels which could be used to try to staunch the flow of blood. Ms Karki then asked Mr Mahmood to call 000 to obtain assistance.

13. According to Ms Karki’s statement Muntaj, the accused, then said to her:

“I did thing in stress. I don’t know how I did, what I did. I should tell the whole thing...He was not eating for me and hitting his head repeatedly”.

Earlier in her statement in [9] Ms Karki said that Mohsin “could be stubborn at times requiring encouragement to get him to do something”. It would be open to a tribunal of fact to accept that the immediate cause for what the accused did was Mohsin’s refusing to eat and hitting his head repeatedly and that caused the accused somehow to decompensate. She appears to have reacted to this act of stubbornness on the part of her son.

14. The first police officer to arrive on the scene was Senior Constable Shayne Markovich of the Sutherland Highway Patrol. He was in Fowler Road, Illawong, having stopped a vehicle when he heard a broadcast over the police radio indicating that there was a “self-harm job” in Illawong. According to what was broadcast, there was a 26 year old male with stab wounds to his neck and back who was showing “suicidal behaviour”. It may be that Mr Barolia, who called 000, gave a version of events which did not inculpate his wife. Earlier, when talking to Ms Karki as they were motoring from her residence at Revesby to Illawong, he expressed concerns that Mohsin, their son, might be taken from the couple if it was thought that his mother had harmed him.

15. When the senior constable arrived he met both Mahmood Barolia and Ms Rejina Karki. His statement then says this:

[8] “Mahmood pointed towards the living room and began speaking to me. I can’t recall exactly what he said. I asked Mahmood to step aside so I could look in the living room. I saw a trail of blood leading from the knife on the floor towards the male lying on the ground on his side next to the lounge. I now know this male as the victim, Mohsin Barolia.

[9] I saw another female about 50 years of age of Middle Eastern appearance holding a towel around the neck of the victim. I now knows that female as the accused, Muntaj Barolia.

[10] I asked Mahmood to step away from the blood on the floor in the living room. I activated my body-worn camera by pressing the record button. This action captures one minute of video footage but no audio. I had a conversation with Mahmood”.

He then recites what the conversation was.

16. Then in the following paragraph of his statement the senior constable records a conversation that he had with the accused. He asked her whether she had cut her son. The accused nodded her head indicating ‘yes’. There was no other relevant conversation with the accused herself other than this which occurred after there was discussion about preserving the clothing that the accused was wearing which was covered in blood. The accused said to the senior constable “I don’t know what I’ve done”.

17. Shortly thereafter general duties policed arrived. They were led by Senior Constable Ashleigh Butterfield of Sutherland Police Station. The accused was arrested and cautioned. She admitted to the police that she had inflicted the injuries on the victim.

18. At 6.22pm during inspections the custody manager noted that the accused said to him or her “I can’t believe what I did to my son”.

19. The accused told the police that she had received a message from a previous carer about standing up for herself and that may have caused her stress. The accused confirmed that the knife on the floor seen by the police and which is before the Court was the knife she used to inflict the injuries. The police asked the accused how she used the knife and the accused used her right hand to indicate a slicing motion across her neck and she said “just cut him”.

20. The agreed facts then describe the various injuries sustained by the Mohsin. There was a laceration on the anterior neck, 1 centimetre from the mid line extending 18 centimetres around to the back of the neck in a continuous laceration. There was anteriorally a smaller laceration 2 centimetres in length and a half a centimetre above the larger laceration. There was then a smaller laceration noted parallel to the larger laceration. On the left side of the neck there was a posterior lateral laceration 4 centimetres in length. There were two minor lacerations on the front of the left chest. There was a superficial scratch 3 centimetres in length in the lower left lumbar region. There were also some lacerations to the distal phalanges of the second and third fingers of the right hand and to the third finger of the left hand. Those were palmar lacerations and probably resulted from the victim’s trying to take the knife from his mother.

21. The victim was an in-patient in hospital until 13 December 2019. The injuries did not require sutures but some Steri-Strips were needed, otherwise only dressings were required and it would appear that the length of the hospitalisation was due to the victim’s extensive pre existing disabilities.

22. On 29 November 2019 the accused saw Dr Jeffrey Engelman, a gastroenterologist. The accused had been referred to him by Dr Lyn Edward Paul, a general practitioner at Illawong. The accused presented to Dr Engelman with a history of recent upper abdominal discomfort associated with a weight loss of 5 kilograms. The accused told Dr Engelman that pain was present almost continuously, often exacerbated by food. The accused denied that she was suffering from anorexia. She denied any change of bowel habit. Recent investigations had proved negative other than showing a positive FOBT and an iron deficiency without anaemia. I am afraid I cannot discern what FOBT represents.

23. On examination, Dr Engelman noted that the accused did not appear to be in any distress and that her abdomen was soft and not tender. He organised to have an upper and lower endoscopy and an iron infusion. For that purpose, she went to the St George Private Hospital on 3 December 2019. She was sedated intravenously and both gastroscopy and colonoscopy were performed. Gastroscopy revealed no abnormality, the colonoscopy revealed two colonic polyps which were excised.

24. The accused was supposed to visit Dr Engelman for post-operative care on 12 December 2019. She could not do so because she was in custody. Instead, Mr Barolia attended on his wife’s behalf. The doctor informed Mr Barolia that the polyps were benign and that there was no evidence of coeliac disease and there was no evidence of helicobacter. He then expressed this view:

“I think a large portion of her symptoms were stress-related given all the negative investigations.”

Whether that diagnosis was made based partially on the fact that the accused was in police custody is unclear but it is often common for medical practitioners who cannot diagnose any disease or problem which could explain symptoms to state the symptoms may be stress-related.

25. The anaesthetic administered to the accused on 3 December was 170 mg of propofol. Given the accused’s weight of 42kg, that is the equivalent of 4 mg of the anaesthetic per kilogram. Following surgery, Mrs Barolia was advised by the hospital that the first 24 hours after discharge she should not drive a motor vehicle or make any important decisions or engage in any work. The discharge was recorded in the hospital records as occurring at 2.20pm. The report of the toxicologist, Dr Michael Robertson, contains these questions and answers:

“1. Identify the nature of any drugs or medicine Mrs Barolia had in her system at the time.

a) Ms Barolia was administered a total of 170mg of propofol on 3 December 2019 at a dose of which for an individual of approximately 42kg is equivalent to 4mg/kg.

b) It is likely that the most, if not all of the administered propofol was eliminated from Ms Barolia at about 11am on Wednesday, 4 December 2019.

c) Gaviscon; Vitamin D, Ovestin and Exforge appear to have been used in the weeks prior to 4 December 2019. I am unable to confirm what, if any of these medications she was using on 4 December 2019.

1. Determine the actual effect of that drug or medication on Ms Barolia’s reasoning, comprehension and self-control at the time of committing the offence.

(a) None of the Gaviscon; Vitamin D, Ovestin or Exforge would materially contribute to any impairment or alteration of Ms Barolia’s reasoning, comprehension and self-control at the time of committing the offence.

(b) With respect to propofol, of relevance the dose of propofol administered was recorded as being 110 mg followed by a further 60 mg, ie, 4 mg/kg. It is unclear over what period of time the dose was administered ie bolus or infusion. [a bolus is a pill shaped mass; however it is clear from the report of Dr Engleman that the anaesthetic was administered intravenously, that is, by infusion].

(c) According to the recommended product information, most adult patients aged less than 55 years are likely to require between 2.0 and 2.5 mg/kg of propofol. Less would be used above this age.

(d) I note Ms Barolia was 57 years at the time of the operation. A dose of 2.5 mg/kg would equate to 105 mg. As such it appears that the dose administered was at the high end of the recommended range.

(e) In a study evaluating among other things the psychological and behavioural changes in early (hours), intermediate (days) and late (week) [post] recovery period found that there was no psycho-behavioural changes in the intermediate or late post-operative period on administration of propofol in lower doses (ie less than 150 mg).

(f) When given in higher doses however (ie above 150 mg), propofol produced various side effects like ‘unpleasant intra-operative dreams, crying, headache, body ache, amnesia, sedation, nightmares, hallucinations, disturbed sleep in the early and intermediate post-operative period’.

(g) The authors of this study concluded that ‘Sevoflurane, propofol, and their combination have various effects on the psychological profile and behavioural patterns of the patients in the early and intermediate post-operative period but not in the late post-operative period.’

(h) This study suggests that following anaesthesia with propofol, behavioural manifestations may last for 24 to 48 hours and appears to include hallucinations.

(i) This is also consistent with other publications that refer to “post-operative delirium” stated to be ‘a state of serious confusion and memory loss that sometimes follows anaesthesia’.

(j) The risk factor for these adverse effects appears to be dose-dependent with the likelihood of adverse effects increasing when doses exceeded 150 mg. Of relevance, Ms Barolia was administered 170 mg.

(k) These described symptoms appeared to be consistent with Ms Barolia’s statement that she did not know what she had done; had no memory of the events and that the anaesthetic made her dizzy and confused.

(l) I note also that Dr Nielssen diagnosed Ms Barolia as experiencing ‘Delirium resolved’ or ‘brief psychotic episode’.

(m) When it is assumed that Ms Barolia was experiencing delirium or a brief psychotic episode in the absence of an alternative cause, it is possible that this was caused by the administration of the propofol approximately 24 hours earlier. In this case, the drug or medication would have disrupted Ms Barolia’s reasoning, comprehension and self-control at the time of committing the offence.”

26. In answer to two further questions Dr Robertson said this:

“If Ms Barolia was experiencing propofol-induced delirium or a brief psychotic episode it is not likely she was able to understand what she was doing or the implications of her conduct.”

“If Ms Barolia was experiencing propofol-induced delirium or a brief psychotic episode, her capability to reason that her act was wrong in the normal standards of everyday life would have been significantly disrupted.”

I leave to one side, Dr Robertson’s opinions as to a brief psychotic episode being capable of establishing either of those matters because Dr Robertson is not a psychiatrist but a toxicologist. However I accept what he said that if there was a propofol-induced delirium it would have the two consequences to which Dr Robertson’s opinion goes.

27. I turn then to the opinion of Dr Nielssen. Dr Nielssen interviewed the accused by audio visual link on 4 May 2020. He also interviewed the accused’s daughter with whom Mrs Barolia was living at that time. He also had available to him the records of the accused’s general practitioners, Dr Sultan-Ali Adatia and Dr Lyn Edward-Paul. He also had available to him the reports from Dr Jeffrey Engelman to which I have referred and the records of the St George Private Hospital and records from an assessment made by the Sutherland Community Mental Health Team in 2007. He also had available to him statements from Senior Constable Ashley Butterfield and Senior Constable Shane Markovich and also a statement from Constable Harris, that is not before me.

27. I do not need to recite all of the history recorded by Dr Nielssen. However, he did ask the accused whether she was aware of anything unusual about her state of mind in the weeks prior to the offence. She told him that she was concerned that she was losing weight and she did not know why and she raised a question as whether it could be ‘stress.’ However, that may be a history tainted by ex post facto rationalisation. After all the history was being given six months after the wounding of her son.

28. The accused told Dr Nielssen that her sleep was generally good but she did not sleep well in the days prior to the endoscopy and she was worried about whether the investigations might reveal that there was something more seriously wrong with her. One can understand that a person in a position of the accused might be concerned about a possible diagnosis of cancer, for example. The history obtained by Dr Nielssen continues thus:

“Ms Barolia said that she felt dizzy when she tried to stand up immediately after the procedure, and had to lie down again. She understood she then had a snack, as she had taken a colonoscopy preparation over the previous two days, and at around 1pm her husband arrived to collect her. She said that she remembered being quite affected by medication that afternoon. She said that she remembered attending to her son with the help of her carer, and later on going with her husband in the car to drop the carer home and to do some shopping.

She said that as far as she could recall she slept through the night and remembered waking at around 7.30am. She said that she did not remember much about the events of that morning, or anything about the offence, itself. She said that her husband was not home, as he was picking up their son’s carer, and she understood that she called him and told him that there was blood, but she said that she did not remember making that call. She said that the next memory was the police being at her home.”

30. Dr Nielssen also obtained a history of a brief psychotic episode in 2007 which is what caused her to be seen by Sutherland Community Mental Health Team in that year. This is the relevant further history about that recorded by Dr Nielssen

“When asked about any history of psychiatric care, Ms Barolia said that in about 2007 she had a previous episode of what she understood to be depression, that was also accompanied by weight loss.

She said, on that occasion she saw a psychiatrist at Sutherland Hospital, who recommended she take a medication that she understood to be for stress, but her husband did not agree with the need for treatment and instead they went on an overseas trip, where she recovered”.

In a further part of his history, concerning 2007 the doctor recorded this:

“She did not report any contact with Mental Health Services on her own account until she saw the psychiatrist in 2007, but attended a psychologist on several occasions with her son when he was going through some difficulties as a teenager. However, she said that those problems passed and she did not report any behavioural difficulties or conflict between she [sic] and her son, and she said that he was compliant with his care.

Ms Barolia said that apart from the episode in 2007 there were no other periods of anxiety or depression apart from feeling apprehensive prior to the procedures. She did not identify any emotional problems arising from the care of her son.

When asked in more detail about the symptoms she experienced in 2007, Ms Barolia reported hallucinations of voices that lasted for a week. She said that she did not recognise the voices or know the origins of the hallucinations, or remember holding beliefs she later recognised to be false, for example, that she was in danger, under surveillance or that her health had been tampered with in any way. She said that she was prescribed a medication whose name she did not remember, but only took medication for one day.

She said that she was “nervous a bit” between 29/11/19 and 3/12/19 but denied experiencing a return of hallucinations of voices or holding any paranoid beliefs or beliefs she may not recognise to be false or unfounded, for example, believing that she might be terminally ill.”

31. There was one piece of psychiatric history relating to her family. Mrs Barolia told Dr Nielssen that in 2017 one of her sisters had some kind of stress condition that required her to be admitted to a psychiatric hospital in Malaysia for ten days and that her sister was still taking medication prescribed by a psychiatrist.

32. Mrs Barolia’s daughter, Mona, the sister of the victim, told Dr Nielssen that her aunt’s condition in Malaysia was thought to be paranoia which caused her admission to the hospital. As far as Mona was concerned the episode in 2007 occurred in the year when the accused suffered a double bereavement and during a period of time when her brother’s behaviour was more difficult as he was going through puberty.

33. On a mental state examination Dr Nielssen said this:

“Ms Barolia maintained attention for the duration of the interview and there was no obvious impairment in concentration. Her registration of information was assessed to be intact, from her appropriate if brief responses to questions. However, she was vague in many of her answers and seemed to have difficulty describing her state of mind in 2007, and around the time of the offence. Cognitive screening was not attempted because of the way the interview was conducted. Her overall intelligence was estimated to be in the normal range, from her reported educational and occupational attainment.”

34. The diagnoses proffered by Dr Nielssen were of an episode of delirium which had resolved or a possible brief psychotic episode. His opinion was this:

“The diagnosis of delirium is based on the history provided by Ms Barolia together with the information in the various medical records and the accounts of her behaviour on the day of the offence. The aetiology of her condition is likely to have been the effect of an anaesthetic administered the previous day, with a possible additional effect of a sedating antihistamine medication, on a background of significant weight loss, lack of food while preparing for the colonoscopy and several days of insomnia.

Propofol is a tissue bound anaesthetic agent that is reported to have a very wide half-life in the body, of between 2 and 22 hours. Propofol is generally short acting, but idiosyncratic reactions and post-anaesthetic confusion and cognitive changes are not uncommon, which is why people who are administered that anaesthetic are advised not to drive or sign important documents in the days after an anaesthetic. Typically, the dose of Propofol is titrated to effect, and the total dose of 170 milligrams for the two procedures would be considered a high dose for a person weighing only 41 kilograms. Moreover, the presence of other factors including the underlying causes of weight loss, the starvation required to prepare for the colonoscopy, the addition of other sedating medication and low blood pressure in the post-operative period are all likely to have contributed to the episode of delirium.

The alternative diagnosis considered was one of a brief psychotic episode, similar to the episode that resulted in Ms Barolia’s presentation to the Sutherland Hospital by ambulance in 2007. On that occasion she reported the hallucination of a voice that told her to give up on her son. There was a family history of what is likely to have been late onset psychotic illness in her sister. The endoscopy proved to be negative, and the physical symptoms reported in the period before those investigations may well have been related to an episode of mental illness, as gastroenterologist the concluded, they were mostly stress related given the negative tests. At the time of the recent interview Ms Barolia’s emotional responses were restricted in range and her answers seemed to be impoverished in content in a way that was consistent with an underlying psychotic illness.

Regardless of whether Ms Barolia’s abnormal state of mind was due to a post operative delirium or brief psychotic episode. I believe that she would have the defence of mental illness open to her for the charges arising from the wounding her disabled son. Delirium is a state of impaired mental function with fluctuating consciousness and impaired intellectual function amounting to a defect of reason arising from an underlying disease of the brain. The exact relationship between Ms Barolia’s confused state and her behaviour remains unclear, as she was unable to describe her mental state or the symptoms that might have been present. However, delirium is characterised by fluctuating levels of consciousness, marked impairment in cognitive function and altered awareness of one’s surroundings, and in a state of delirium a person is often unable to appreciate the physical nature and quality of their actions, and on the balance of probabilities Ms Barolia did not have sufficient awareness of [her] surroundings or the ability to exercise voluntary control of her actions in order to form the necessary intent to commit offences. She was also deprived of the ability to recognise that her actions were wrong, as they were clearly unintended.

Based on her recent presentation, I believe Ms Barolia would derive considerable benefit from further evaluation and treatment by a psychiatrist, to either exclude or treat an underlying mental illness, and to intervene in the event of her abnormal state of mind returning.”

35. Assuming that Dr Nielssen’s primary diagnosis of an episode of delirium being correct, then the episode was transient, it can only have occurred over a period of less than half an hour between 10.30 when Mahmood Barolia left the family home and 11.15 when the accused telephoned Mr Barolia and told him that she had attacked their son with an knife. Dr Nielssen’s hypothesis of the anaesthetic administered to the accused on preceding day having a part to play in the onset of this episode of delirium is confirmed by the report of the toxicologist, Dr Robertson.

36. Of course I have held that the new Act applies to the current case and therefore I must rely on the new Act when reaching a decision. However like most lawyers I am conservative and go back to my initial training concerning mental illness which of course is based on the M’Naghten rules. Section 38 of the old Act is in these terms;

“(1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that a person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or an omission was made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

(2) If a special verdict of not guilty by reason of mental illness is determined at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under s 39 in respect of the person.”

In subs (1) the relevant words are “according to law” which means according to the common law that in fact empowers an adoption of the M’Naghten rules resulting from the decision in R v M’Naghten (1843) 8 ER 718. The rules are these:

“every man is to be presumed to be sane; and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proven...: that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and the nature of the act he was doing; or if he did know it, that he did not know what he was doing was wrong.”

37. On the analysis offered by Dr Nielssen the accused would have been found not guilty applying the M’Naghten rules.

38. The new Act provides a definition of “mental health impairment”. It is contained in s 4, the provision is this:

4   Mental health impairment

(1)  For the purposes of this Act, a person has a mental health impairmentif—

(a)  the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and

(b)  the disturbance would be regarded as significant for clinical diagnostic purposes, and

(c)  the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

(2)  A mental health impairment may arise from any of the following disorders but may also arise for other reasons—

(a)  an anxiety disorder,

(b)  an affective disorder, including clinical depression and bipolar disorder,

(c)  a psychotic disorder,

(d)  a substance induced mental disorder that is not temporary.

(3)  A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by—

(a)  the temporary effect of ingesting a substance, or

(b)  a substance use disorder.

39. Part 3 of the Act concerns the defence of mental health impairment or cognitive impairment. It contains s 28 which is this:

28   Defence of mental health impairment or cognitive impairment

(1)  A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person—

(a)  did not know the nature and quality of the act, or

(b)  did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

(2)  The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities.

(3)  Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect.

(4)  In this Part, act includes—

(a)  an omission, and

(b)  a series of acts or omissions.

In the current case it is not suggested that there is a cognitive impairment.

40. On the formulation offered by Dr Nielssen there as a temporary disturbance of thought, volition and perception. The disturbance would clearly be regarded as significant because of the consequences of that disturbance. That disturbance led to the commission of an offence which was completely out of character for the mother of a disabled child, who had cared for that child for 26 years. The disturbance clearly impaired the judgment and behaviour of the person. Section 4(1) of the new Act is therefore satisfied.

41. Dr Nielssen’s alternative diagnosis of a psychotic disturbance is clearly a matter which satisfies subs (2)(c) of s 4 but in any event a delirium is a condition well described in the DSM-5 and clearly satisfies the test imposed by s 4(2).

42. Insofar as the anaesthetic was taken into the accused’s body it does not in my view fall within subs (3) because one does not ingest an anaesthetic, it is administered to one intravenously and ingesting has both the concept of taking orally and certainly has the concept of being a voluntary act, and therefore on Dr Nielssen’s formulation all of the requirements of s 4 have been satisfied.

43. I turn then to s 28 of the new Act. The findings of Dr Nielssen as I sought to show establish that the accused satisfies the chapeau to subs (1) in that she was suffering from a mental health impairment.

44. The next question is whether she did not know the nature and quality of the act. That is a finding made by Dr Nielssen and is supported by the finding of Dr Robertson. Therefore, subs (1)(a) is satisfied. Although par (a) is an alternative to par (b) according to Dr Nielssen’s formulation the accused would also satisfy the requirement of par (b) in that she did not know that the act was wrong. I point out that the bracketed matter in subs (1)(b) appears to be a statutory formulation of what was said by Dixon J in R v Porter (1933) 55 CLR 182 at 189-190:

“The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by ‘wrong’? What is meant by wrong is wrong having regard to everyday standards of reasonable people.”

Section 28(1) is therefore answered to the Court’s satisfaction.

45. Subsection (2) of s 28 reaffirms the long held position at common law that the question of whether the accused has a mental health impairment or cognitive impairment or both had that effect is a question of fact to be determined by the tribunal of fact on the balance of probabilities.

46. Subsection (3) maintains the common law position that until the contrary is proved it is presumed that the defendant did not have a mental health impairment or cognitive impairment or both that had the effect of causing the mental health defence. In other words, the formulation of Dr Nielssen satisfies not only the M’Naghten rules but also the provisions of the new Act.

47. I turn then to the formulation made by Dr Martin. Dr Martin interviewed the accused in person in his rooms in Hengrove Hall on 23 September 2020. He also had available to him a large number of documents, which I infer included the documents available to Dr Nielssen as well as the reports of Dr Nielssen and Dr Robertson. Under the heading “Current Presentation and Recent Progress” Dr Martin records this:

“Mrs Barolia was quietly spoken and not particularly forthcoming, but described her mood as ‘okay’ and said, ‘I’m good’. She described being ‘a bit stressed’ and said she takes medication, Mirtazapine [a commonly prescribed sedative, antidepressant and anxiolytic agent] 15mg, which she has been prescribed since March 2020 by her general practitioner. She did not endorse current or recent experience of psychotic phenomena, and she did not express feelings of hopelessness, worthlessness, or pathological guilt, suicidal or violent ideation.”

I interpolate at this time that Mirtazapine was the drug prescribed to the accused in 2007 which she took on only the one occasion. The prescription of Mirtazapine in 2007 is confirmed in the report of Dr Nielssen.

48. Under the heading “Psychiatric History” Dr Martin recorded this:

“Mrs Barolia described having been treated in 2007 for ‘stress’ as an outpatient through the Sutherland Hospital Acute Care Team. She only took medication for one day. She was not forthcoming in relation to details about this, but described having been stressed and anxious at this time. She did not give a clear history of previous experience of psychotic symptoms at interview. She denied any history of mental health unit admissions, and she denied any history of deliberate self-harming or suicide attempts. She denied having ongoing psychological counselling or psychiatric treatment.”

49. Later in his report, Dr Martin comments on the records of the Sutherland Hospital Community Mental Health Team, those comments can be found at [19] of his report. Of them, Dr Martin says this:

“In particular, I note the form dated 25.10.2007 which states ‘been taken to hospital by ambulance after self-referral in the context of being unable to cope with psychosocial stressors, related to their 14 year old disabled son who had an increase in behavioural disturbance, daughter under stress at the HSC, and within increasing anger towards her client, husband, describing lack of support and feeling overwhelmed, with suicidal ideation and a plan to overdose with antidepressants’, and it states “Client has long history of panic and anxiety associated with lack of respite and feeling overwhelmed. Client took three tablets today in hope would end her life”. [Note that this was somewhat inconsistent with her narrative account at interview when she denied previous suicidal thinking]

In the following paragraph of his report he notes that on 29 August 2007 the Sutherland Hospital Community Mental Health team notes speak of the accused hearing voices coming from nowhere telling her to give up her son and the notes, according to Dr Martin, go on to point out that the accused was experiencing significant stress in relation to looking after her son.

50. A relevant part of the history recorded by Dr Martin is this:

“12. Mrs Barolia described sleeping well the night following the procedure [gastroscopy and colonoscopy], and said that when she woke up that she had tea at the dining table with her husband, with a biscuit. She said because she had not felt well that her husband showered her son. Her husband gave an account of being away for an hour as the usual daily carer had not been able to attend early that morning, and that he had planned to pick the carer up from Revesby. He said that she had called him. She told me that she was unable to remember whether she had called him or he had called her.

13. On being asked directly what had happened, she said ‘I just blacked out’ and she said that she could not remember the alleged offending. She said that she could last remember feeding her son chapattis and around ‘10 something’. She said that she could remember he had been watching children’s television. She said that she could not remember subsequently what happened. She said that she had vague recall of the ambulance and police officers attending her house and then being taken into custody. She said she was able to remember giving a police statement at the police station, and recalled subsequently being in custody.

14. In relation to her mental around this time, in the police station and subsequently in custody, she only said ‘I was okay’, and she denied treatment with psychiatric medication or being housed in the mental health screening unit. She denied the experience of panic attacks. On direct questioning, she did not disclose experience of overt psychotic phenomena such as paranoia or hearing voices around the time of the alleged offending.

15. Her husband gave an account of Dr Ingleman saying that she had been ‘stressed’ when he saw her in November 2020. He said that she was sleeping on the lounge in the evenings and was very tired, and that her role as a carer was extremely demanding [and he said that he has now found out directly how demanding caring for their son is as he is the main carer during the day]. Her husband said that she had not been eating properly in the time leading up to the alleged offending. He described her as being totally consumed by caring for their son and generally being extremely tired, not caring for herself and having minimal time to herself. On direct questioning her husband said that she often becomes anxious about checking doors are locked, although he was not clear that she engages in ritualistic or compulsive behaviour as seen in Obsessive Compulsive Disorder. He described her as being very neat and tidy, and his description of her was that she was somewhat perfectionistic. She said she and her husband both denied having previously had thoughts of harming their son”.

51. The next section of Dr Martin’s report concerns his mental state examination. I believe it is very important in this case. This is what Dr Martin recorded:

“Mrs Barolia presented punctually in the company of her husband, and interacted appropriately. She was polite, calm and co-operative. She maintained good eye contact. There was no psychomotor disturbance. She was smartly dressed. She appeared well kmpt. She displayed poverty of expressed speech and her responses were frequently brief, and she was quietly spoken. Her responses were coherent and there was no gross thought disorder. She did not appear hallucinated but was somewhat blunted and had a restricted expression, although did not appear overtly preoccupied or perplexed. She was not hostile or suspicious. She made very limited spontaneous expressions but there was no sense of overt hopelessness, worthlessness or guilt. I formed the view that she appeared quite emotionally detached [as might be seen in a person exposed to chronic stress]. She was alert and orientated to the circumstances of the interview. Formal neuro-cognitive examination was not undertaken. Subjectively, she reported limited memory for the time around the alleged events, and in particular stated she could not remember the actual alleged wounding. She was able to concentrate on the process of the interview.”

52. This is the opinion expressed by Dr Martin:

“24. I note the psychiatric opinion of Dr Nielssen, and in summary, in my view, he has documented the collateral information referred to above accurately and consistently, and the history that he took, and mental state examination was consistent with my own findings. Dr Nielssen goes on to consider possible explanations for the alleged offending, giving a diagnosis of ‘delirium, resolved’ and ‘possible brief psychotic episode’, and ultimately opines that Mrs Barolia has the mental illness offence available to her. The toxicology report of Dr Michael Robertson [14.7.20] opines that it is possible that she was experiencing delirium or brief psychotic episode in the context of having recently being administered the anaesthetic Propofol [for the endoscopy investigation on 03.12.19].

25. I formed the view that the alleged offending occurred under significant stress which had been present over a lengthy period [that is ‘carer stress’ in relation to looking after her severely disabled son]. It is likely that she was ‘dissociated’. Dissociation is a description of severe cognitive disturbance where there is disconnection between normal integrated cognitive functions such as memory, identity and awareness of one’s surroundings, which is a marker for severe stress, as currently seen following a highly traumatic incident. The fact that the alleged offending occurred the day after the anaesthetic involving Propofol seems significant and it is plausible that her judgment was significantly clouded following the anaesthetic, as outlined in the reports of Dr Robertson and Dr Nielssen.

26. My view on watching body worn footage and listening to her responses is that she did not appear delirious. Delirium is a potentially life-threatening acute confusional state brought about by severe illness, metabolic disturbance or toxicity. She did not have clouded consciousness at the time and appeared alert and aware of her surroundings, and was able to give coherent responses to the police. She did not appear perplexed or confused, although does appear detached, as might be seen in a dissociated episode. There is no information to suggest that she was acutely confused in the time prior to her husband leaving the house, and she apparently slept well and then had tea and a biscuit, and was not noted to be behaving bizarrely or in a confused manner, according to the information available.

27. She herself gives a very limited account of her mental state in the time, which is suggestive in itself of a chronically stressed and depressed woman as might be expected in the circumstances of having to care for her severely disabled son over many years. This is reinforced by the information describing her presentation in 2007 with anxious and depressive symptoms, suicidal ideation and even apparently reporting hearing voices but having very limited mental health follow-up subsequently. It was recommended at the time that she take an antidepressant. More recently following the alleged events, she has also been prescribed an antidepressant, Mirtazapine, by her general practitioner. She is not in other formal psychiatric or psychological treatment apparently.

28. In my view there is some uncertainty as to her exact state of mind at the time of the alleged offending, and an opinion is necessarily somewhat speculative. I have not seen subsequent medical information from the Justice Health clinicians describing her presentation after reception into custody, and if this information were to be available, this will be helpful in at least describing the clinical issues around that time. The possibility of post-operative delirium cannot be ruled out and as noted above in my view it is significant that the alleged offending occurred the day after an anaesthetic procedure, when she was given an apparently high dose of an anaesthetic agent known to cause problems with judgment and possible delirium following.

29. My preferred formulation for what occurred is that she experienced a severe dissociative episode in the context of stress, and untreated depression and anxiety, associated with the responsibility of caring for her severely disabled son. I agree with Dr Nielssen’s opinion of a “brief psychotic episode” and in my view the alleged offending occurred in this context. Her subsequent lack of memory for the alleged events is plausibly and likely consistent with dissociation. The alleged offending itself appears deliberate and intentional, and according to the prosecution’s statement of facts (alleged), comments to her husband, and subsequently to the police are consistent with knowledge of the act. It appears deliberate and intentional. However, in my view, from a clinical perspective it is reasonable to see her as having a defect of reason arising from disease of the mind [brief psychotic episode] on the background of a chronic depressive condition. In my view the anaesthetic probably reduced the threshold for behavioural disturbance by disinhibiting her and clouding her judgment. It is likely that she knew the nature and the quality of her alleged behaviour but her capacity to understand the wrongfulness was severely compromised as a result of severe stress on the background of recent anaesthetic. In my view, it is reasonable for the Court to see that she would not have been able to reason with moderate composure as a result of these issues. To this end, in my view, she has the mental illness defence available to her.”

53. Clearly Dr Martin was addressing the then applicable law governed by the M’Naghten rules. Clearly he accepted that the accused was suffering from a brief psychotic episode which he thought was a disease of the mind in the background of a chronic depressive condition. He believe that given that background the anaesthetic probably triggered off the brief psychotic episode which was the alternative diagnosis of Dr Nielssen. Although Dr Martin believed that the accused did know the nature and quality of her act did not believe that she knew that the wrongfulness of her act, her judgment being compromised by the severe stress in the background and the recent anaesthetic.

54. Going to the definition of mental health impairment in Section 4 of the new Act, clearly there was a temporary disturbance of perception or volition or thought and it was clearly significant because like Dr Nielssen, Dr Martin believed it explained what happened which was completely out of character, and clearly was relevant for diagnostic purposes, and the disturbance impaired the judgment and behaviour of the accused. Clearly subs (2)(c) is satisfied on Dr Martin’s formulation. Clearly subs (3) is satisfied in that it could not be said that the accused is involuntary reaction to the anaesthetic, which was unforeseen and unexpected, could not be characterised as “the temporary effect of ingesting a substance” for reasons I have already given. Therefore on Dr Martin’s assessment s 4 of the new Act is satisfied.

55. I turn then to s 28. Again the chapeau to subs (1) is satisfied. Clearly Dr Martin was of the view that the accused did know the nature and quality of her act but on his formulation she did not know that the act was wrong, that is, that she could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong. Therefore the accused satisfies, on the balance of probabilities, the matter prescribed by subs (1)(b) of s 28 of the new Act.

56. Again that is a question of fact and is determined by the tribunal of fact on the balance of probabilities. In other words Dr Martin’s formulation like Dr Nielssen’s formulation establishes the defence. In the circumstances when both psychiatric opinions, that for the accused and that for the Crown satisfy the requirements of both than M’Naghten rules and s 28 of the new Act, then the accused is entitled to the special verdict which she seeks.

57. If I be required to decide which formulation I prefer, it appears to me that there is much to be said for the formulation made by Dr Martin. Dr Martin had available to him the body worn camera footage of the police who attended the family home relatively shortly after the event and recorded what was being said and done by the accused. I see that Dr Nielssen had available to him the same film but he does not refer in his report at any stage to what it shows or what it led him to believe. Unfortunately I have not been shown the film so I do not know what it shows but I have accept the only description of it and it is that given by Dr Martin. The other thing that persuades me that I should give credence to what Dr Martin says, is that his formulation explains what had been going on, as far as the accused is concerned for many, many years. In 2007 Mohsin would have turned 14, in other words it is understandable that in that year he should have been going through puberty. Most males going through puberty cause problems for their parents and for others who deal with them and one can understand that given Mohsin’s personal circumstances the stress that he would have caused to his primary carer, his mother, would have been quite severe.

58. The observations of the accused both by Dr Nielssen and by Dr Martin give, in my view, merit to the diagnosis of a chronic depressive condition resulting from years of stress. It was from the years of care that the accused had been giving to her son, as Dr Martin called it “carer stress”, arose that chronic background. One can easily accept that the effect of the “overdose” of anaesthetic could have easily precipitated the accused into a brief psychotic episode when the accused was unable to feed the victim and when the victim starting hitting his head, just as she had a brief psychotic episode in 2007.

59. For those reasons I prefer the opinion of Dr Martin to that of Dr Nielssen, if I need to, but I note in essence that Dr Martin agrees with the possibility of the diagnosis preferred by Dr Nielssen and Dr Nielssen raises the diagnosis that is preferred by Dr Martin. It is unusual in psychiatric medicine to get two psychiatrists, in essence, agreeing to the same thing. In other words, I am persuaded that the defence of mental illness has been made out. I can deal with this matter under s 31 of the new Act, that provides this;

“The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if –

“(a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and

(b) the defendant is represented by an Australian legal practitioner, and,

(c) the court, after considering the evidence, is satisfied that the defence is so established.”

60. Muntaj Bagam Barolia, on the charge that on 4 December 2019 at Illawong in this State you recklessly wounded Mohsin Barolia, I return a special verdict of act proven but not criminally responsible.

61. Pursuant to s 33(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 the Court requests a report from the Forensic Mental Health Network as to the condition of the former accused and whether her release is likely to endanger her safety or that of any other person.

Note: the Court is considering releasing the former accused and requests recommendations of conditions (if any) as to her care and/or treatment in the community and whether the former accused be permitted to resume cohabitating with her son.

62. I direct the Registrar to provide to the Forensic Mental Health Network a copy of the following: exhibit A, the agreed facts; exhibit D, the reports of Dr J Engelman; exhibit E, report of Dr O Nielssen; exhibit F, report of Dr M Robertson; exhibit G, report of Dr A Martin.

DISCUSSION AS TO SUITABLE DATES

ADJOURNED TO FRIDAY 3 DECEMBER 2021

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Decision last updated: 17 December 2021