R v BC

[2019] NSWSC 735

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v BC [2019] NSWSC 735

Hearing dates:

11-14 June 2019

Date of orders:

14 June 2019

Decision date:

14 June 2019

Jurisdiction:

Common Law

Before:

Walton J

Decision:

I make the following orders:

 

(1) I find BC not guilty of the murder of Scott Anthony Dickinson on the grounds of mental illness.

 

(2) Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, I order that the accused be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.

 

(3) I direct the Registrar to notify the Attorney General, the Minister for Health and the Mental Health Review Tribunal of these orders as soon as practicable.

 (4) The Registrar is to provide the Mental Health Review Tribunal with a copy of my reasons and of the reports of Dr Furst and Dr Adams.

Catchwords:

CRIMINAL LAW – special hearing – mental health defence – psychiatric evidence – accused suffered defect of reasoning – accused unable to reason wrongfulness – accused mentally ill at time of offence – special verdict of not guilty – order pursuant to s 39 of the Mental Health (Forensic Provisions) Act

Legislation Cited:

Crimes Act 1900 Act (NSW)
Criminal Procedure Act 1986 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

Mizzi v R (1960) 105 CLR 659
R v Falconer (1990) 171 CLR 30
R v Gourlay [2015] NSWSC 67
R v Minani [2005] NSWCCA 226
R v Porter (1933) 55 CLR 182
Stapleton v R (1952) 86 CLR 358
Tumanako v R (1992) 64 A Crim R 149

Category:

Principal judgment

Parties:

Regina (Crown)
BC (Accused)

Representation:

Counsel:
P W Kerr (Crown)
J Clarke (Accused)

  Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2016/00263573

Publication restriction:

The name is not published by virtue of s 162 of the Mental Health Act 2007 (NSW).

Judgment

1. HIS HONOUR: BC stands indicted with the murder of Scott Anthony Dickinson (“the deceased”), contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The murder is alleged to have occurred on 1 September 2016 at Albury in this State.

2. The accused first appeared before this Court on 4 August 2017. The matter did not proceed to arraignment, but was adjourned then and on a number of subsequent occasions, before, on 4 May 2018, the question of her fitness to be tried was raised.

3. On 2 August 2018, the accused was arraigned without a plea. Having had the benefit of expert opinion from Dr Richard Furst, consultant forensic psychiatrist and Dr Jonathan Adams, forensic psychiatrist, Wilson J found that the accused was not fit to be tried and was unlikely to become fit within a twelve month period. The accused was referred to the Mental Health Review Tribunal.

4. On 14 March 2019, the Mental Health Review Tribunal found that, for the purposes of ss 46 and 47 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”), due to the accused’s mental illness, she did not meet the criteria for fitness to be tried for the offence charged and that, on the balance of probabilities, that situation would continue and the accused would not become fit during the period of twelve months after the finding of unfitness.

5. On 12 June 2019, after the indictment was presented by the Crown, a plea of not guilty was entered by the Court. Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the trial proceeded by way of a Judge alone trial.

ISSUE AT TRIAL

6. It was not in dispute that the accused stabbed the deceased on 1 September 2016 in Albury, and that, when inflicting those wounds, the accused was acting in a voluntary manner. It was not disputed the accused intended to inflict those wounds. Nor was it in dispute that the wounds occasioned by the accused directly caused the deceased’s death. Rather the accused raised a mental health defence, namely, she was mentally ill for the purposes of s 38 of the Act. Counsel for the accused contended that the accused was mentally ill, so as not to be responsible, according to law, for her actions “at the time when those otherwise serious criminal acts were done”.

The Defence of Mental Illness – General Principles

7. Justice Button observed in R v Gourlay [2015] NSWSC 67 at [50]:

[50] If the Crown were to satisfy me beyond reasonable doubt that the accused voluntarily (without reference to any mental illness) did an act that caused the death of the deceased, I would then turn to the defence of mental illness. Although the defence is referred to in s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act), it is not defined by statute. Its elements were set out well over 150 years ago in McNaghten's Case (1843) 8 ER 718 at [722] …

8. In order to establish a defence on the grounds of mental illness, it must be established that, at the time of committing the act causing the deceased's death, the accused was labouring under such a defect of reason, from a disease of the mind, as to not know the quality and the nature of the act that he or she was doing or, if he or she did know it, that he or she did not know what he or she was doing was wrong.

9. A person does not know the nature and quality of the act if he or she does not know the physical nature of what he or she is doing or the implications of it (see R v Porter (1933) 55 CLR 182 (“Porter”) at 188). A person does not know what he or she was doing was wrong when he or she does not know that it is wrong according to ordinary standards of right and wrong adopted by reasonable persons: see Porter at 190 and Stapleton v R (1952) 86 CLR 358 at 367.

10. The test under the second limb of that definition was stated by Dixon J in Porter (at 189-190) in the following terms:

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 the every day standards of reasonable people.

11. A disease of the mind is any disease which is capable of affecting the mind, irrespective of whether it has a mental or physical origin and irrespective of whether or not the defect of reason caused is temporary or permanent. However, it does not include the transitory effects of some application of an external factor such as violence or drugs or a psychological trauma to an otherwise healthy mind (see R v Falconer (1990) 171 CLR 30 at 75).

12. The onus of proving the defence is on the accused, who must prove it on the balance of probabilities: Mizzi v R (1960) 105 CLR 659 at 664. If the medical evidence relating to the issue of mental illness is unanimous, that evidence cannot be rejected by the tribunal of fact in the absence of other material which casts some doubt on it: Tumanako v R (1992) 64 A Crim R 149 at 160-161.

13. In R v Minani [2005] NSWCCA 226 at [32], the Court discussed the approach to be taken by a Court in considering mental illness in an offence of specific intent (the matter concerned malicious wounding with intent to inflict grievous bodily harm). Hunt AJA (with whom Spigelman CJ and Howie J agreed), stated (at [32]):

[32] Proof of the specific intention which the Crown must prove in such a case is not always an easy one where there is an element of mental illness involved. In Hawkins v The Queen (1994) 179 CLR 500 (at 510, 512-514, 517), the High Court held that, contrary to what had previously been thought to be the law in this State, evidence of mental illness is relevant to the question as to whether the accused's act was done with the specific intent charged. The High Court held that the order in which the issues should be determined in a case where there is evidence of mental illness is: (1) Was it the act of the accused which, in this case, caused the malicious wounding? (2) Was he criminally responsible for doing that act? (3) Was that act done with the specific intention required? The second question is resolved by a finding that mental illness had been established. The third question arises only if the second question is answered adversely to the accused and, in those circumstances, the evidence of mental illness (even though insufficient to make out the defence) is relevant to the issue of specific intent. That evidence is not, however, relevant to the issue as to whether the act of the accused was a deliberate one. The High Court said (at 515) that there was no necessary inconsistency between mental abnormality and the existence of a specific intent, but nevertheless the evidence of mental illness must be taken into account in determining whether there was that specific intent. As the judge found in the present case that the defence of mental illness had been established, it was unnecessary for him to make any finding of specific intent.

14. Extrapolating those principles to the present case, the Court must determine whether it was the act of the accused that caused the death of the deceased and, if so, then move on to consider whether the accused was criminally responsible for doing that act. It is at that time that the Court determines whether the defence of mental illness is made out. The question of whether the specific intent was proven only arises where the answer to the mental illness defence is decided adverse to the accused.

FACTUAL BACKGROUND

15. There was no dispute as to the relevant factual background in the matter which I now summarise.

General Background

The Relationship

16. The accused and the deceased were engaged in a turbulent and sometimes violent domestic relationship over a period of approximately four years, commencing in about 2012. They would separate on occasions for unknown periods of time before reconciling.

17. The accused and the deceased were living in a domestic relationship during the period immediately prior to 1 September 2016.

Consumption of illicit substances

18. Both the accused and the deceased were regular users of illicit substances, including methylamphetamine and cannabis.

19. At approximately 8.00pm on Wednesday, 31 August 2016, the accused and deceased consumed an unknown quantity of methylamphetamine.

The events of the early morning of 1 September 2016

20. Just after midnight on 1 September 2016, the accused left 43 Hibiscus Crescent and went to the “APCO Service Station”, situated at Mate Street, North Albury, to purchase cigarettes and items of food and drink. The accused was captured on CCTV entering the Service Station at 12.49am, Thursday, 1 September 2016, and leaving approximately seven minutes later at 12.56am.

21. The accused returned to Hibiscus Crescent, West Albury (“the residence”).

22. At some time between the hours of 3.00am and 5.00am the deceased was seated on a black couch situated in the lounge room of the residence watching television. The accused was also present at this time.

23. Following a verbal, non-physical argument, the accused became angry and upset with the deceased and obtained a 345 mm black-handled knife, with a blade 215 mm in length, from the kitchen (hereafter, “the knife”). At its broadest point, the blade of the knife is 47 mm wide.

24. The accused walked to where the deceased was seated on the black couch and stabbed him with the knife in his left arm and left thigh. The deceased stood up, and the accused and the deceased engaged in a physical altercation, during which the accused stabbed the deceased in the back with the knife.

25. After being stabbed, the deceased fell to the floor, whereupon the accused dragged the deceased into the bathroom and attempted to administer CPR to the deceased. At this time the deceased may still have been capable of assisting in his own movements.

26. At approximately 5.00am the accused contacted triple-0 reporting that the deceased had been stabbed. She stated that two or three unknown males had entered the house and that one of the males had stabbed the deceased.

27. NSW Paramedics attended the residence and sighted the accused sitting on top of the deceased.

28. The accused said to one of the Paramedics, “I’ve done mouth to mouth for 25 minutes before ringing you guys. Two guys had come. People come to our door at any time of the night. There was an argument. They operated on his brain and injected syphilis. He has Hep C”.

29. After examining the deceased, it was concluded that the deceased had sustained injuries inconsistent with life. No first aid was administered.

30. Police attended a short time later. The accused told police that two unknown Aboriginal males had entered the house and had stabbed the deceased. A third male had remained at the front door of the residence.

31. The accused was formally cautioned, arrested and conveyed to Albury Police Station.

32. The accused participated in an ERISP, during which she told Police that she had lied about the three men, and that there were no other persons at the residence. She said, “I didn’t have any accessories [sic]”.

33. The accused told police, “I think I stabbed him”.

34. During the ERISP the accused also made the following statements:

(a) … he just kept insulting me and making me out and I could hear voices through his two-way radio telling him to bash the crap out of me;

(b) He was sitting down on the black lounge when I stabbed him. I stabbed him about four times; in the arm, in the leg. I don’t know if there are any stab wounds to the back because we were actually fighting by the time I attacked him. He attacked me back. If I didn’t stab him he would have stabbed me and bashed me;

(c) … had a brain transplant with my daughter’s brain too. One of my daughters who I didn’t give birth to got beheaded to give him a brain, she was a four-year-old … the eggs were sucked out of me;

(d) …one came out and mutated, it was a mutated egg, like, large egg. Because he got pox from raping and gave … after I got raped with bipolar brain and septic poo;

(e) … I was going to ring youse straight off first … I just, he’s supposed to be trying to kill me and my kids then try to do an insurance job on me; and

(f) I killed my own daughter because he had my daughter’s brain inside him.

35. When asked about drug use on the night of 31 August 2016 and on the morning of 1 September 2016, the accused said:

I used crystal meth, a $25 shot, before I went to the [service station] but I don’t think that’s what made me go mental. I think it was actually the clover leaf. Like the fact that he put clover leaf in my marijuana to try and kill me. He’s given me insulation to smoke before which made my eyes cover up in warts and I couldn’t stop coughing for forty minutes.

36. The accused was later taken to Albury Base Hospital where she made further admissions to medical staff of having stabbed the deceased.

Scientific and medical evidence

37. A swab taken from the knife revealed a mixed DNA profile that originated from two individuals. The major contributor to the mixture had the same DNA profile as the accused. The DNA of the minor contributor was not suitable for comparison due to its low level.

38. The deceased was formally certified as life extinct at 8.27pm on 1 September 2016 at the Albury Wodonga Hospital by Dr Hayley Dylce.

39. An autopsy was conducted upon the body of the deceased at 9.00am on 5 September 2016 by Dr Brian Beer. The direct cause of death was stated as being “hypovolaemic shock secondary to blood loss”. The underlying cause of death was stated to be “multiple stab wounds”.

40. Dr Beer identified ten stab wounds to the body of the deceased.

41. Wound 1 was identified by Dr Beer as being the primary cause of death, with wounds 3, 4 and 10 contributing to the blood loss leading to death.

42. The wounds were identified as follows:

1. Wound 1 was inflicted to the deceased’s upper right chest. It was 43 mm in length and measured to a maximum depth of 30 mm.

2. Wound 2 was identified to be a superficial cut measuring 2 mm in length and 2-3 mm deep.

3. Wound 3 was inflicted to the left mid/top shoulder of the deceased. It measured 43 mm in length and was estimated to be approximately 40 mm deep.

4. Wound 4 was located in the left upper lateral chest, 35 mm in length and 35 mm deep.

5. Wound 5 was located in the left lateral upper arm of the deceased. It was measured to be 40 mm in length and 60 mm deep.

6. Wounds 6 and 7 represented a “through and through” stab wound in the left mid-upper arm of the deceased. Wound 6 was the entry wound and measured 40 mm in length. Wound 7 was the exit wound and measured 30 mm in length.

7. Wound 8 was identified as a “complex of three superficial incised wounds” located marginally above the left elbow, measuring 15 mm, 4 mm and 2 mm in length.

8. Wound 9 was located in the left lateral upper forearm. It was measured as being 50 mm in length and 2-3 mm deep.

9. Wound 10 was a stab wound to the anterior of the left thigh. It was 45 mm in length and of a depth of 35 mm.

43. A number of other abrasions were located on the deceased’s nose, forearm and wrist, and lower medial right thigh, just above the knee.

44. Dr Beer also identified a fracture to the 4th lateral left rib and partially incised ribs caused by the stab wounds referred to above.

Psychiatric Evidence

45. The accused was examined by Dr Adams, on behalf of the Crown, on 14 March 2018 and 21 March 2019. Dr Adams opined that due to the mental health state of the accused, the defence of “not guilty by reason on mental illness” was available to her.

46. The accused was also examined by Dr Furst, who was engaged by the legal representatives of the accused. Dr Furst examined the accused on 11 January 2018. Dr Furst also opined that the defence of “not guilty by reason on mental illness” was available to the accused.

47. The accused relied upon the reports of Dr Furst dated 27 February 2018 and 5 June 2019 and also the reports of Dr Adams dated 25 June 2018 and 19 April 2019.

Dr Richard Furst

48. Dr Furst saw BC, as mentioned, on 18 January 2018, and provided a report substantially directed to the question of fitness to enter a plea and stand trial in the ordinary manner. That report is dated, as mentioned, 27 February 2018. The report does, however, address the question of a mental health defence, concluding in the last sentence of section 3 headed, “Any issues that may have been affecting BC’s judgment or behaviour at the time of the alleged offence” as follows: “I am of the opinion, BC has the defence of mental illness available to her”.

49. In his second report, Dr Furst noted that he did not interview the accused again. Nonetheless, he indicated: “…however, I have formed the view that there is sufficient information in the available material and from my earlier interview on 11/01/18 to provide a valid opinion about the availability or otherwise of the mental illness defence”.

50. Dr Furst addressed various historical considerations. He stated that at the interview of 11 January 2018 the accused’s behaviour was quite bizarre and disjointed in the history she provided. However, there was clear evidence of delusional thinking.

51. He observed that the accused was assessed on 5 September 2016 and, at that time, her symptoms included “hearing derogatory voices”. He further observed:

She gave the following history in relation to in the alleged offence: “when I stabbed [Scott], she had a two-way radio calling me slut features, slut features. He smacked me in the face 40 times...He wanted me admitted to Nolan House...”

Those comments make it more likely than not [BC] was delusional about the victim at the time of the alleged offence, and likely has the mental illness defence available to her.

52. Dr Furst noted that Dr Adams reviewed the accused’s Justice Health medical records, including an entry by Dr Jones on 14 September 2016, only two weeks after the alleged offence, and observed that psychotic symptoms evident at that time were broadly similar to those described by himself and Dr Adams in their first respective reports. The balance of the accused’s Justice Health file and the determination of the Mental Health Review Tribunal, dated 21 March 2019, confirmed the initial clinical opinion given by Dr Furst that the accused’s primary diagnosis was consistent with severe and chronic treatment resistant schizophrenia.

52. Dr Furst then opined:

The additional history obtained by Dr Adams and the additional medical records now makes it highly likely that [BC] was tortured by a variety of bizarre delusional beliefs coupled with auditory hallucinations and thought disorder at the time of the alleged offence, such that she believed that she was in danger of being killed by the deceased and/or seriously harmed by the deceased. Those beliefs and hallucinations constitute a defect of reason in the McNaughton's sense. She also believed that her daughter had been sexually abused and was in further danger from the deceased. She lacked insight into being mentally unwell at the time, which had been a pattern over a number of years.

In my opinion, [BC] was acutely psychotic as a consequence of her poorly controlled chronic schizophrenic illness at the time of the alleged offence. Furthermore, the combination of delusional beliefs about the deceased, hallucinations and disorganised thinking meant that she was unable to reason about the wrongfulness of her actions according to the standards of ordinary people. Therefore, I am of the opinion that [BC] has the mental illness defence available to her.

54. If the accused was acquitted upon the basis of a successful mental illness defence, Dr Furst considered that the accused should be placed in a Forensic Hospital, being “the ideal placement for her longer-term psychiatric rehabilitation and treatment”.

55. He further observed:

Unfortunately, due to the seriousness of the offence in question, the severe nature of her treatment resistant chronic schizophrenic illness, previous substance use disorder and her generally poor insight into her illness and treatment needs, her long-term prognosis is relatively poor, with hospital-based care likely over at least the next several years.

Dr Jonathan Adams

56. In his report of 19 April 2019, Dr Adams commenced by noting that the accused again manifested (in her second interview) a variety of symptoms of schizophrenia, as she did during his initial evaluation.

57. He opined that the accused’s diagnosis remained unchanged, namely, the accused suffered with schizophrenia and a comorbid substance use disorder.

58. Further, he opined that:

On the basis of my interviews with [BC] and my review of the comprehensive collateral material provided, in my opinion there is clear evidence of her long-standing diagnosis of schizophrenia and severe symptomatology, in the context of her comorbid substance use disorder, dating back several years It is evident that she was experiencing symptoms of schizophrenia during the period surrounding the alleged offence During the weeks leading up to the alleged offence thought disorder was documented in the Albury Community Mental Health records on 12 August 2016, the Community Corrections Officer noted features consistent with persisting symptoms of schizophrenia, and the Witness Statements illustrated comments made by [the accused] in keeping with delusional beliefs centring on the alleged victim. Considering the collateral information pertaining to [BC’s] clinical presentation immediately after the alleged offence there is evidence of bizarre ideas consistent with delusional beliefs referred to in the paramedic statement, there is evidence of persisting symptoms of schizophrenia during her statement to the police, and there is evidence of severe symptoms of schizophrenia upon her incarceration, as illustrated in the Justice Health Medical Record.

59. He found that the accused was suffering from a disease of mind at the time of the alleged offence.

60. As to whether the accused suffered a “defect of reason” at the time of the offences Dr Adams stated:

I understand that the legal term of 'defect of reason' describes someone's impaired decision-making capacity and impaired judgement I have illustrated [BC’s] mental state at the material time of the alleged offence above, and in more detail in my initial report I believe [BC] was enduring severe symptoms of schizophrenia, in the form of delusional beliefs, auditory hallucinations, and thought disorder, at the material time of the alleged offence. There appears to be a nexus between the nature of her persecutory delusional beliefs focusing on the alleged victim, and her motivation for the alleged assault.

61. Further, he opined in this respect:

It is also likely in my view that auditory hallucinations reinforced her persecutory thinking. As a result, in my opinion her capacity to make rational decisions was impaired, hence it is reasonable to conclude that she manifested a 'defect of reason' at the material time of the alleged offence of murder.

62. Dr Adams considered that the use of illicit drugs had an impact upon the accused’s mental state but this was not the primary origin of her symptoms of mental illness. The primary source concerned her diagnosed mental illness of schizophrenia and a comorbid substance use disorder.

63. Significantly, Dr Adams opined:

In my opinion, [BC’s] symptoms of schizophrenia, namely her distressing delusional beliefs, intrusive auditory hallucinations, and severe thought disorder would have impacted upon her capacity to comprehend the moral wrongfulness of the alleged behaviour In my view, her symptoms of schizophrenia severely distorted her thought processes, and were directly linked to her motivation for the alleged violence towards her partner It is reasonable to conclude that she did not have the requisite capacity to reason with a moderate degree of sense of composure as a result of her symptoms of schizophrenia.

Consequently, in my opinion the defence of not guilty by reason of mental illness is available to [BC].

64. As to the ongoing mental health care of the accused, Dr Adams stated:

I remain of the opinion that [BC] will require assertive input from Mental Health Services in the long-term I am willing to consider her treatment needs and risk management needs in more detail if instructed.

CONCLUSION: MENTAL ILLNESS

65. The accused conceded, by her counsel, that it was her act that caused the death of the deceased. The unanimous opinion of the assessing psychiatrists was that, at the time of stabbing, the accused suffered from a disease of the mind, namely, a chronic and treatment resistant schizophrenic illness, and was suffering from a defect of reasoning and unable to reason about the wrongfulness of her actions with a moderate degree of sense and composure as a result of that disease.

66. In the circumstances, and having regard to the aforementioned principles as to a defence of mental illness, the accused was mentally ill at the time of the offence and must, therefore, be found not guilty of the offence of murder by reason of mental illness.

Section 39 of the Mental Health (Forensic Provisions) Act 1990

67. Having found the accused not guilty by reason of mental illness, the Court is required by s 39 of the Mental Health (Forensic Provisions) Act to make a determination regarding the accused’s immediate future. That provision is in the following terms:

39 Effect of finding and declaration of mental illness

(1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.

(2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release.

(3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Tribunal of the terms of the order.

68. Counsel for the accused did not propose that the accused be released into the community at this time. Having regard to the medical evidence of Dr Furst and Dr Adams, I accept that approach. The accused requires ongoing assertive psychiatric care from the mental health services of Justice Health and ongoing assertive input from forensic mental health services.

ORDERS

69. In the circumstances, I make the following orders:

1. I find BC not guilty of the murder of Scott Anthony Dickinson on the grounds of mental illness.

2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, I order that the accused be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.

3. I direct the Registrar to notify the Attorney General, the Minister for Health and the Mental Health Review Tribunal of these orders as soon as practicable.

4. The Registrar is to provide the Mental Health Review Tribunal with a copy of my reasons and of the reports of Dr Furst and Dr Adams.

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Amendments

18 June 2019 - Cover sheet - typographical error amended

Decision last updated: 18 June 2019