R v Bartel
[2008] VSC 408
•6 October 2008
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
No. 1744 of 2008
| THE QUEEN |
| v |
| LEE MAREE BARTEL |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 October 2008 | |
DATE OF JUDGMENT: | 6 October 2008 | |
CASE MAY BE CITED AS: | R v Lee Maree Bartel | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 408 | |
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Criminal law – One count of attempted murder – s 21(4) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Trial by judge – Directed verdict of not guilty by reason of mental impairment.
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APPEARANCES: | Counsel | Solicitors |
| For the Accused | Mr M. Lincoln | Office of Public Prosecutions |
| For the Defendant | Mr P.J. Morrissey | Clarebrough Pica |
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HIS HONOUR:
Today, 6 October 2008, Lee Maree Bartel pleaded not guilty to the attempted murder of Garry Thomas before me. The matter proceeded as a hearing pursuant to s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). This provision allows the trial judge to determine whether a person charged with an indictable offence was suffering mental impairment at the time the conduct constituting the offence occurred. The prerequisite to the judge's role in hearing such a case without a jury is the agreement of the prosecution and defence that the proposed evidence establishes the defence of mental impairment. (See s 21(4) of the Act).
Mental impairment is defined in s 20(1)of the Act in these terms:
"Defence of Mental Impairment
The defence of mental impairment is established for a person charged with an offence if at the time of engaging in conduct constituting the offence the person was suffering from a mental impairment that had the effect that (a) he or she did not know the nature and quality of the conduct; or (b) he or she did not know that the conduct was wrong. (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong)."
It is the second limb of the definition of mental impairment that the court is concerned with in this case.
Subsection (2) of s 20 provides:
"If the defence of mental impairment is established, the person must be found not guilty because of mental impairment."
If the trial judge is satisfied on the balance of probabilities that the person charged with the offence was suffering from mental impairment at the relevant time, the entry of a verdict of not guilty because of mental impairment may be directed. If the trial judge is not so satisfied, an order that the charge be heard by a jury must be made (s 21(4)(a) and (b)).
The facts surrounding the incident have been deposed to by the informant Detective Senior Constable Topham, and are contained in the depositional material. The summary read by Mr Lincoln, who appeared for the Crown, is Exhibit 2.
The facts briefly stated are: Lee Maree Bartel was born on 26 June 1978 and is now 30 years of age. At the time of these events she was residing with her mother. Ms Bartel has a psychiatric history going back to about the year 1999. On the night of 31 October 2007, Ms Bartel received a number of text messages from the victim in this matter, Mr Garry Thomas. She had been involved in a relationship with him for about three or four months.
Her interpretation of those messages was that Mr Thomas was attempting to blackmail her, the motive being that she had formed a relationship with another man. She interpreted the messages as meaning that the victim was going to provide information to her former partner Peter to be used against her in the forthcoming custody battle about her children who are now six and four.
That seems to accord at least in part with what Mr Thomas said in his statement. His motive for sending the messages and putting pressure on Ms Bartel was an attempt to try and get a reply to his messages. At about 3 a.m. Ms Bartel replied saying that she would come to Mr Thomas's place and arrived there about 40 minutes later.
Mr Thomas was living at 321 Hawthorn Road, Caulfield South. The couple spent the rest of the night together in Mr Thomas's room. At about 7.30 a.m. Mr Thomas went to sleep and Ms Bartel stabbed him a number of times with a Wiltshire knife which had a 15 to 17 centimetre blade. She had brought it with her for the purpose of using it on Mr Thomas.
Mr Thomas was repeatedly stabbed to the upper body. He received 17 stab wounds, primarily to his neck, back and face. He suffered a laceration to the right upper lobe of his lung, bringing about a hemopneumothorax and there was blood and air in his chest. On the left side he had a laceration to his left chest which caused a pneumothorax on the left side.
Following those events, Ms Bartel left the home of Mr Thomas. Where she went is not entirely clear but later that night she was arrested by the police in Croydon. She said when interviewed by the police that she had stabbed Mr Thomas on a number of occasions and left him, having stabbed him, taking with her his mobile phone.
She was able to tell the police that she had disposed of the knife in a rubbish bin somewhere near the corner of Spencer and Bourke Streets and that she had placed Mr Thomas's mobile phone in a drawer in some furniture at a Villa Hut store located in the Direct Factory Outlet section of the Southern Cross Station.
The phone was recovered, the knife was not. That was apparently as a result of the fact that the bin had been cleared at some time before the police were able to get there. Ms Bartel was spoken to by Detective Senior Constable Topham who recorded the conversation on a hand held recorder. During the course of the conversations, she admitted that she took a knife with her to Garry Thomas's room and she wanted to stab him in the throat so that he would die.
When it was put to her she had intentionally caused injuries to Garry with the intention of killing him, she answered that it did not work. I have already set out the consequences of the wounds that Mr Thomas received. Mr Thomas has made a reasonable recovery. He is concerned about permanent damage to his shoulder.
I received a victim impact statement from him which I treated as a report pursuant to s 42 of the Act. I understand the tension he feels about this matter and his concern as to the result. I do not believe that he has had explained to him the depth of the psychiatric difficulties which Ms Bartel has suffered since 1999. I doubt that he has had access to the material which would enable him to have a better understanding of these matters.
I think anyone who had been present here today and heard the evidence of the witnesses would have a better understanding of what is afoot in cases such as these. It is important, and I emphasise the importance of it, not only that these cases be heard publicly but the material on which they depend be ventilated in open court.
The question which then arises is, what was Ms Bartel's mental state at the time she attempted to kill Mr Thomas? I earlier pointed out that Ms Bartel has a significant history of involvement with the mental health system in this State going back to 1999. She was first seen in that year after an attempted suicide. It led to treatment as an in-patient.
She has had four further admissions as an in-patient, each for about three months which must be regarded as significant. She has not been compliant with taking medication over a long period. Among other things, she does not like the side effects.
Dr Best, who was at the time of her report on 11 July 2008 an advanced psychiatry trainee in forensic psychiatry employed by the Victorian Institute of Forensic Mental Health, gave evidence before me and her detailed and helpful report was tendered at the hearing.
The full history was set out, the report as I have indicated having been tendered as an exhibit. I refer though in detail to two particular paragraphs of the report under the heading, “Opinion” which seem to me to bring together all the material here:
"Ms Bartel has a diagnosis of schizo-affective disorder with her first admission to a psychiatric unit in 1999. Although marijuana use pre-dates this admission (although she had ceased using marijuana two months prior to this admission) the following three admissions appear to have been precipitated by either ceasing medication or as a consequence of pregnancy (either antenatal or postnatal). Her second admission in 2001 occurred when she was pregnant with her first child and was managed without medication. Her third admission in 2004 occurred six months post partum following the birth of her second child. (She had not been taking medication during her pregnancy.) Her fourth admission in 2006 occurred when she had ceased taking the psychotropic medication two months previously. Her fifth admission occurred after she had been charged and remanded at Dame Phyllis Frost Centre and then bailed to the Alfred Psychiatric Inpatient Unit. These admissions occurred in the absence of a history of drug use giving credence to a clear diagnosis of mental illness rather than drug related illness. Four of her five admissions were as an involuntary patient under the Mental Health Act suggesting that she was significantly unwell at the time and she was unable to consent to treatment. Each admission has lasted approximately three or more months suggesting that her symptoms have been difficult to treat.
Ms Bartel has a clear diagnosis of schizo-affective disorder bipolar type, and although there is no evidence that she did not know the nature or the quality of her conduct I believe that because of the active psychotic symptoms, disorganisation and delusional thought processes at the time of the offence she was unable to reason with any degree of sense and composure about the wrongness of her conduct. In my opinion Ms Bartel has a defence of mental impairment available to her."
It should be noted that Dr Ryan who had conducted his own interview with Ms Bartel, agreed with the conclusions that were reached by Dr Best. The prognosis of Ms Bartel is such that she will requite ongoing treatment and medication for a long period of time and her detention in the Thomas Embling Hospital will be necessary.
I am therefore satisfied that the evidence establishes on the balance of probabilities that the defence of mental impairment has been made out and I direct that a verdict of not guilty because of mental impairment be recorded. That finding is pursuant to s 21(4)(a) of the Act. The ground of mental impairment is that pursuant to s 20(1)(b) of the Act, Ms Bartel at the time she attempted to kill Mr Thomas did not know that the conduct was wrong, that is she could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong. I declare pursuant to s 23(a) of the Act that Ms Bartel is liable for supervision under Part V of the Act. I have been provided with a certificate pursuant to s 47 of the Act over the signature of Dr Douglas Bell.
The essential part of that certificate is:
“Given Ms Bartel’s clinical condition, the appropriate treatment should be provided through in-patient services at Thomas Embling Hospital at Yarra Bend Road, Fairfield. The facilities and resources necessary to provide such in-patient treatment and services are available should the court make a custodial supervision order under the Act.”
I therefore make a Custodial Supervision Order committing Ms Bartel at Thomas Embling Hospital, an appropriate place within the meaning of s 26(2)(a)(i) of the Act. The nominal period of the supervision order is twelve and a half years, to run from 6 February 2008. I have published a separate ruling about the calculation of the nominal period for the crime of attempted murder.
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