R v CJ

Case •

[2013] NSWDC 40

•

14 March 2013

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v CJ [2013] NSWDC 40
Hearing dates: 25,26,27 February, 4,5, March 2013
Decision date: 14 March 2013
Jurisdiction:Civil
Before: Judge Williams
Decision:

Not Guilty on the grounds of mental illness

Catchwords:

Judge alone trial - 21 sexual offences by a female offender against juveniles - mental illness - facts not disputed - issue of bipolar disorder - issue of wrongness - competing psychiatric opinions - relevance of DSM IV

Legislation Cited:

Mental Health (Forensic Provisions) Act

Civil Liability Act

Crimes Act

Cases Cited:

R v M'Naghten (1833) 8 ER 718

R v Radford (1985) 42 SASR 266

R v Fernando [2011] NSWSC 1556

R v Jennings [2005] NSWSC 789

R v Porter (1936) 55 CLR 182

Sodeman v R [1936] 55 CLR 192

R v Weeks [1993] 66 A Crim R 466

Willgoss v R (1960) 105 CLR 295

R v Codere (1916) Cr App R 21

R v Hodges (1985) 19 A Crim R 129

Texts Cited:

Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM IV),

Crime and Mental Health Law in NSW Howard & Westmore

NSW Criminal Trial Courts Bench Book

Category:Principal judgment
Parties: Director of Public Prosecutions
CJ
Representation:

DPP: Ms S Herbert ,
Def: Mr R Cavanaugh

Solicitor for Public Prosecutions
Baker & Borthwick, Tuncurry
File Number(s): 2010/17430 2010/00017810
Publication restriction: A non-publication order applies to anything that might identify any complainant or other young person or the school from which they came.

Judgment

NB:- A non-publication order applies to anything that might identify any complainant or other young person or the school from which they came.

  1. This is a retrial after a successful conviction appeal to the Court of Criminal Appeal (CJ v R [2012] NSWCCA 258, Hall J, Beasley JA & Campbell J agreeing). I do not have nor have I read the transcript of the first trial nor have I been asked to by either party. I have read the judgement of the CCA.

  2. The accused admits the ingredients of the 21 offences on the indictment but not necessarily that the statement of facts tendered by the crown, fully reflects what happened in each particular instance. Whilst I agree with that, it is not really appropriate to set out a fuller exposé of the facts because to do so is both unhelpful to the reader and would make this judgement excessively lengthy. However, as I state later, it is necessary to read the various interviews of the complainants and other young persons to gain a fuller understanding of what was going on and the accused's mental state at the time. Each offence was one of sexual assault of some description on young boys aged between 11 and 12. Within the 21 offences there are 14 offences that occurred with more than the one victim.

  3. In each case the defence is one of not guilty on the ground of mental illness.

  4. If it is necessary, I direct myself in regard to the consequences of a special verdict in regard to the accused and the involvement of the Mental Health Review Tribunal as per the NSW Criminal Trial Courts Bench Book at 6.260 p1258.

  5. The statement of facts is drawn principally from the interviews with the complainants and other young persons at the school. Whilst there may be issues of accuracy in the interviews as to dates, times and places, there is no dispute that the offences occurred. The principal complainant, JP, made two interviews, as did some others. In the first interview he admitted having told a lie as to where one particular event occurred, but not that the event did not in fact happen. However that simply goes to increasing the chance that places and perhaps dates and the like may be wrong rather than impinging on his general credibility. One needs to remember that these are quite young boys being interviewed in circumstances likely to have been emotionally distressing, not just in regard to what happened, but also as to how what happened was likely to be regardedby their families, within their peer group and within the school generally.

  6. Section 38(1) of the Mental Health (Forensic Provisions) Act provides that 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 the 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 omission 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.

  7. It is generally accepted that for an accused to be not responsible according to law for his or her actions because of mental illness what is being referred to is the second M'Naghten Rule (R v M'Naghten (1833) 10 Cl. & Fin. 200 [8 ER 718]). That is that the accused, in order to be found to be mentally ill at the time of the offending,

  1. must be labouring under a defect of reason caused by a disease of the mind,

  2. as a result of which the accused did not know the nature and quality of her acts; or if she did know the nature and quality of the acts she did not know that it was wrong.

  1. 'Disease of the mind', 'mental illness', 'mental derangement' and 'mental disorder' are expressions that have been interpreted differently by courts over the years. In R v Radford (1985) 42 SASR 266, King CJ said

"the expression 'disease of the mind' is synonymous, in my opinion, with mental illness...in R v Porter Dixon J used the expression 'disease, disorder or disturbance'. But the words 'disorder' and 'disturbance' must take their colour from the word 'disease' and refer to a disorder and disturbance of the mental faculties which can be characterised as mental illness."

  1. In R v Fernando [2011] NSWSC 1556, Hall J referred to what was said in two cases of Jennings and Porter.

  2. In R v Jennings [2005] NSWSC 789 Kirby J said at [25]-[28]:-

" The law, as you would expect, is fundamentally concerned with holding people accountable, that is, responsible, for their actions. It is recognised, however, that a person may not be responsible for what they do by reason of mental illness. However, there are degrees of mental illness. A person may be totally impaired at the time they commit a breach of the law, or their impairment may be less than total, although still substantial.

The defence of mental illness arises where the accused satisfies the Court, as a matter of probability, that, *** he was labouring under such a defect of reason, from a disease of the mind, that he did not know the nature and quality of his act or, alternatively, if he did know, then he did not know that what he was doing was wrong. The first limb, in lay terms, requires that the accused did not know what he was doing, whereas the second deals with his appreciation of the morality of what he was doing, that is, whether it was right or wrong".

  1. Fernando and Jennings were judge alone trials.

  2. In R v Porter (1936) 55 CLR 182 at (189-190) Dixon J directed the jury that:-

"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 everyday standards of reasonable people."

  1. In Sodeman v R [1936] 55 CLR 192 Dixon J said at p215

"When a derangement of the mind manifests itself only intermittently and in acts of passion, frenzy or the like, the question whether the party accused labours under such a disease of the mind that he did not know that what he was doing was wrong may well provoke in response two further questions-namely, what is meant by "know," and, at what stage in the course of his progress towards the commission of the acts charged must capacity to know cease? In general it may be correctly said that, if the disease or mental derangement so governs the faculties that it is impossible for the party accused to reason with some moderate degree of calmness in relation to the moral quality of what he is doing, he is prevented from knowing that what he does is wrong.

The conditions of irresponsibility must exist at the time when the prisoner commits the acts with which he is charged. In the present case the prisoner's statement is consistent with the possibility that until the child began to obey his injunction to walk home he restrained himself. It may therefore be desirable to add that when, under the influence of derangement or instability of mind, there are rapid changes in the condition of a man's understanding as he proceeds in or towards the commission of the act charged, the law would appear to be that he establishes his irresponsibility only if no intention to do it exists in his mind at a time when he is both capable of understanding the nature and quality of his act and knowing that it is wrong."

  1. Virtually all of the case law on the issue of the defence of mental illness relates to single event crimes, usually murder or manslaughter, although I am aware of one case of culpable driving causing death. (cf R v Weeks [1993] 66 A Crim R 466). In the present case I am dealing with 21 offences committed over a period between 29 Jan 2009 and 30 July 2009, with a number of the offences being said to have occurred between a range of dates rather than on a specific date.

  2. As the Crown says, this trial involves an issue of fundamental importance, namely the accused's criminal responsibility for repeated and grave offences against six small boys in her care. The Crown submits that the only conclusion that can be drawn from the circumstances of the offending is that the accused knew that her acts were wrong.

  3. I accept that in Willgoss v R (1960) 105 CLR 295, the High Court stated that the concept of knowledge is not expanded to include an empathy on the part of an accused as to whether an act was wrong. The Crown argues therefore that as such, the defence of mental illness is not available to the accused. I have to operate within the decided case law and that law does not recognise an extension of the defence of mental illness to the sort of circumstances argued in the Willgoss case.

  4. In the present case there is a dispute that the accused suffered a mental illness at the time of the offences. On the one hand Drs Nielssen and Richardson say that she was suffering from bi-polar disorder (BPD) and on the other hand, Prof Greenberg says that she was not. The accused has to establish that it is more probable than not that all the elements of the defence of mental illness have been made out.

  5. In submissions, the Crown accepts that it is possible that a person suffering from Bipolar I Disorder who is in a manic or hypomanic state may have a defence of mental illness available. However on the evidence in this matter, even if the accused was in manic or a hypomanic state, the Crown submits it is insufficient to establish the defence of mental illness as the accused was clearly aware of the wrongfulness of her actions.

  6. I accept that in the medical determination of mental illness, the issue is not black and white and that like any physical illness, different persons will be affected by a mental illness to different degrees of seriousness depending on a range of factors such as age, personality, experience, emotional makeup and general health, to name but a few.

  7. In the course of these proceedings reliance has been placed on the Diagnostic and Statistical Manual etc. IV (DSM IV) an American clinical publication designed to assist medical practitioners not lawyers. In a published letter to the NSW Law Society Journal in December 2010, Dr Peter Shea (Forensic psychiatrist and former Challis Lecturer and Adjunct Associate Professor, Faculty of Law, Sydney University) said this:-

(The) Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSMIV-TR) is referred to as "the bible of mental health". It is nothing of the sort.

The categories it contains are not definitive. They overlap and they are constantly being reviewed and changed The DSM-III (1980), for example, contained nearly double the number of categories that were included in the DSM-11 (1968). Even today there are no settled categories on which all psychiatrists agree The DSM-IV is currently being revised and the draft DSM-V categories include some that do not exist in the DSM-IV and others that are radically different from their counterparts in the DSM-IV.

One of the basic problems is whether or not categories should be used at all in the taxonomy of psychiatric illness. The alternative approach is a dimensional one but, at present, this is still only in the develop- mental stage, although it could form the basis for reforming some of the current categories, such as the personality disorders, in future classifications. Haslam sums up the problem as follows. "Traditionally, biological psychiatrists have taken a 'disease perspective (which) rests on a logic that captures abnormalities within categories. Psychodynamic psychiatrists are more apt to take a dimensional perspective, in which disorder arises out of psychological vulnerabilities and environmental provocations that vary in degree rather than kind."

In the meantime lawyers should note what the DSM says about itself, viz: "The DSM-IV ... was developed for use in clinical, educational and research settings. When the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood."

In regard to the categories themselves, the DSM states: "The specific diagnostic categories are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion ... In DSM-IV there is no assumption that each category of mental disorders is a completely discrete entity with absolute boundaries dividing it from other mental disorders or from no mental disorder. The exercise of clinical judgment may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe."

This comment would apply equally to all classifications based on categories, including the ICD- 10 (the tenth edition of the International Classification of Mental and Behavioural Disorders of the World Health Organization), which at least has the advantages of being a classification that is recognised world-wide The ICD-10 points out, however (and this applies also to the DSM): "[These] descriptions and guidelines ... do not purport to be comprehensive statements about the current state of knowledge of the disorders. A classification is a way of seeing the world at a point in time. No classification is ever perfect."

It should be clear by now that the DSM-IV and the ICD- 10 are taxonomies designed for non-forensic purposes. As Ellard once put it, "They are not stations on the way to some ultimate reality; they are this year's shorthand for this year's hypotheses about the nature of things that interest us. The only thing certain about them is that they will be found wanting and will change as the years change."

Finally, in regard to the DSM, it must be emphasised that it was written by American psychiatrists for American psychiatrists. Mullen and Pathe have the following to say about the DSM: "[It] is no more than a distillate of the prejudices and power plays of a group of ageing American academics, of no interest to most Europeans and only passing relevance to some Australasians."

In 1992 Kirk and Kitchins published an incisive analysis of the conflicting political agendas behind the development of the various editions of the DMS. In their book, The Selling of DSM The Rhetoric of Science in Psychiatry, they describe how, in the development of the DSMs: "Science and images of science (were) used by contending factions in their struggle for influence, position and advantage. The lumping and splitting of behaviours and personal experiences into categories of disorder involves more than technical decisions. It also involves negotiations among contending interest groups of theoreticians, researchers, clinicians, and, at times, potential patients. Changing the psychiatric nosology involves struggles among constituencies and balancing conflicting interests."

In 1991 Lawrence Hartmann, the new president of the American Psychiatric Association, in his address to the annual meeting of the association, summed up the dormant concerns of many American psychiatrists when he said that DSM-III, DSM-III-R and DSM-IV "[may] have helped many aspects of psychiatry, but they have harmed others, partly by oversimplifying. They emphasise clarity and reliability but, many clinicians think, sacrifice validity and the whole person."

In 1998, an editorial in the American Journal of Psychiatry expanded on this point:

"The current DSM process gives the image of precision and exactness. All this apparent precision overlooks the fact that as yet, we have no identified etiological agents for psychiatric disorders. Our diagnoses are nowhere near the precision of the diagnostic processes in the rest of medicine. By the current use of the DSM-IV ... we have lost the patient and his or her story; the diagnosis, not the patient, often gets treated; (and) the study of psychopathology is almost nonexistent."

  1. Dr Greenberg acknowledged at TP 6 that DSM IV is not a recipe book so it does list criteria but when one makes a diagnosis one has to look at the totality of everything especially with forensic assessments. It is my view that the DSM should not be used as a tool by a court in helping to determine whether or not a person is in fact mentally ill and that a clinicians view, whilst not necessarily binding on a court, is a better indicator of the ultimate question.

  2. I think it is important in this case to look at the chronology of events leading up to the offences and thereafter as being helpful in understanding perhaps how these offences came to be committed. Quite a deal of reliance has been placed on some material that has been tendered and provided to the experts from sources other than the accused herself.

  3. For example there is a short letter from her husband, a shorter letter from her daughter, a letter from her mother and one from a brother and police statements from co-workers. The letters are not date specific and speak in laypersons terms of observed behaviour in the accused.

  4. In so far as the co-worker statements are concerned, the statements deal with issues other than observations of the accused's behaviour. They are essentially silent as to noting any particular way in which the accused behaved in the work place. It is argued that because these statements do not contain any evidence of odd behaviour I can infer that the accused was behaving otherwise normally. I do not accept that such an inference can be drawn, although it is an inference relied on by Prof. Greenberg in coming to his opinion.

Chronology of events:-

  1. The accused has had an unfortunate background. Her history is basically as set out below with the qualification that she herself is not a particularly accurate historian except in a general sense. She was born on 10 Feb.1969. The family moved some 25 times in 20 years before her mother split from her father who, the mother says, suffered from bi-polar disorder. Her mother sought advice from a child psychologist in regard to tantrums. At the age of 13, after the split, she lived with her father and began to experience school and societally problematic behaviour. She took up with a 17 year old drug addict and criminal with whom she had a baby. After a short inter regnum she met a boy 4/5 years younger and commenced a relationship. She was about 19. After 2 years she formed another relationship resulting in a second child. That didn't last and she returned to her mother, the family eventually settling in the Southern Highlands. There she met her husband, a man 18 years her senior who had children of his own who were only slightly younger than her. For eight years she worked as a nurse in a geriatric facility until she commenced working at the school where the offending occurred in mid 2007. According to her mother she left nursing despite liking the job, because she suffered a nervous breakdown due to pressure being put on staff as a result of new management systems.

  1. In September 2009, her husband wrote a brief letter about the accused which related to his observations of her over 12 years but not related to any specific period. He describes her as

"sometimes a mature adult and other times a immature child, the way she acts, her childish humour, silly comments and occasional tantrums. When we have visitors call in or trades people here to do work she will stay in our bedroom close the door and not come out until they have gone. [CJ] sometimes has a need to over the top analyse everything and anything trying to read another meaning into what someone has said other than what they really mean. One of [CJ]'s favourite pastimes is playing with our two dogs and cat for hours rolling around like an eight year old. [CJ] has emotional mood swings sometimes needing affection, other times wanting none, yet wanting me to figure it out. On occasions you cannot disagree with her she just goes on like a lunatic screaming, crying and sometimes throwing things at you. [CJ] has long sort to get help for her depression from early days of our relationship. [CJ] is easily manipulated by those who want to take advantage of her. [CJ] is like a kid in a lolly shop when it comes to credit having no idea how to manage money and maybe never able to run her own finances. I really believe [CJ] has some form of a disability or illness".

  1. In her mother's letter, again non specific as to times, her mother says

"Through circumstances beyond our control the family moved house a lot, by the time I separated from her father who had bipolar mood disorder, we had moved 25 times in 20 years, From 1 State to another (NSW to QLD) then to another country (NZ). ... [CJ] has had many grand ideas in the past 13 years; she would always ring up and talk for hours on end about her new pet project and would get irritable with you if you couldn't see her point of view, other times she would not want to talk at all One minute she would be the lead actress in a play and on top of the world and-the next moment she would be doing some TAFE course, as well as holding down a full time job and be so depressed if she wasn't achieving top marks. It has been my observation over the years that she would be bubbling over with enthusiasm about being a mother, wife and provider for her 2 children (she had very little help from Neville and no help from Brian) and in the next breath be so depressed about it all. She is the only one of my three children that has contact with her father, she seems to understand him, as she sees a lot of similarities between herself and him."

  1. Her brother in another similar letter said inter alia

"we had a dysfunctional father and family life. Moving continually interstate and overseas, changing multiple schools and trying to adjust to different standards and levels of education, while dealing with family break up by our parents, resulting in [CJ] and myself leaving home at an early age while stilI teenagers. This left us open to moral danger with no adult guidance in the right direction. My sister [CJ] got involved with an older male who abused her trust and innocence, resulting m her having a baby girl at IS years old intestate where she had no family support. *** I am very surprised having a close relationship and knowing my sister, that the allegations against her are very disturbing and stressful. I have only known [CJ] to be a kind, caring, beautiful mother and sister, overcoming many challenges in her life."

  1. Her daughter similarly wrote that:-

"Growing up my mum used to go sico over us just being normal kids eg if I would spill something she would yell and scream and hit us and lecture us for hours saying the same thing over and over again. I also noticed she used to change her hair a lot colour style she used to change her style of clothes like dressing in only 50's style and then dressing like a 15 year old I felt like I was the mother. Some days I would come home from school I would want to talk to her and she would look depressed and say: I don't want to talk she would look depressed all the time and be in her room all the time she was very easily offended and get very up set over little things and cry in her room for hours over nothing very up and down in moods and say one thing one week then the next it was different never stuck to the same rules".

  1. Whilst the histories obtained by the doctors from the accused vary in detail, I need to take account of the whole picture before determining whether aspects of the histories are unfavourable to the accused.

  2. The overall impression I got from Prof Greenberg's evidence is that he takes a somewhat extreme view as to what constitutes bipolar disorder whereas Dr Nielssen's approach to diagnosis is more inclusive. As such, these views represent somewhat opposite ends of the spectrum as to how the court should approach the issue of mental illness. Given that the requirement for proof is on the balance of probabilities clearly the approach should be to consider whether it is more likely than not that the defence has been made out. All an accused has to do is to tip the scales in favour of the defence. If one approaches it logically, this could mean that the court could find something on the balance of probabilities but not beyond reasonable doubt, that is the finding does not have to be one of certainty but of probability only, bearing in mind the standard of proof applies to the two aspects in issue namely mental illness and wrongness.

  3. During cross- examination Prof Greenberg sometimes prefaced a reply with the expression that "you can't compartmentalise" aspects of the accused's behaviour and that one needs to look at the totality. At TP 30 the following appears:-

Q. You said clearly that one of the reasons why you say she wasn't occupationally dysfunctional was that there were no reports from other staff about her being dysfunctional. Is that true?

A. You're breaking - you're compartmentalising and breaking things down.

Q. Well yes I am?

A. And that is a problem when making a diagnosis. If you're going to compartmentalise and break everything into little pieces one could diagnose manic depression or diabetes or any other illness on a computer by tick sheet. So it's not a question of just getting, getting a symptom. It's a question of grading the symptom and seeing it I context of the totality and--

Q. I don't want to argue with you about your profession and how you go about it doctor. You're the one who specifically pointed to certain criteria and I'm just taking you to those criteria to see how you worked them out. Are you with me?

A. Yes.

Q. One of the criteria was that she didn't show occupational dysfunction?

A. Yes.

  1. These responses were based on a premise that the accused was said to be in an acute manic phase over the five month period of the offending. However it has never been Drs Nielssen or Richardson's contention that the accused was in an acute manic state but rather a hypomanic state typical of persons with bipolar disorder.

  2. I think there was general agreement that an acute manic state was unlikely to last for five months and did usually required hospitalisation, but there is no agreement as to whether a person in a hypomanic state qualifies to be designated as suffering from bipolar 1 disorder (BP1) as compared to bipolar 2 (BP2), cyclothymia or dysthymia. Prof Greenberg regards BP2 and the other disorders as being less severe than BP1, whereas Dr Nielssen says you can't make hard and fast boundaries in clinical diagnosis.

  3. At TP 81 the following exchange took place during cross examination of Dr Nielssen:-

Q. Bipolar 1 is the most extreme psychiatric form where you have these mood swings going between mania and the major depressive episodes?

A. Yes that's right, it's pervasive elevation of mood lasting for a period of time with a clinically significant manifestation of elevated mood that's required to make that diagnosis. Without, without abnormally elevated mood there's no bipolar. So whether it's bipolar 1, bipolar 2

Q. All right I'm going to work through. So bipolar 1 is our most extreme on the spectrum?

A. Well it's one with more, with more, more of the elevated mood.

Q. Bipolar 1, one of the essential criterias is mania as opposed to hypomania, isn't it?

A. Look it's splitting hairs I think in the sense that

Q. DSM4?

A. Well DSM5 will be out in two months, we'll have a look at that one and see if we still, you know, if it makes any difference. I mean one of the, on page 23 of DSM4 of course is a warning not to take it too literally in Courts so let's look at the clinical manifestations of these real conditions.

Q. But the differentiation between bipolar 1 and bipolar 2 are one of the diagnostic features listed in DCM4 is that for bipolar 1 it must be mania and hypomania is not sufficient like if you would assist?

A. No I think I've already put the DCM criteria in their proper context, they're not reliable and are (not) for Courts and you know if it's bipolar 2 it can be just as severe if the mania or depression is severe.

Continuing the chronology:-

  1. In 2007 she was employed as a house mother on weekends at a boarding school. This involved live in work from Friday night to Monday morning. She commenced on 12 May 2007.

  2. On 10 Feb 2009 she had her fortieth birthday.

  3. Although the indictment specifies various dates for offences, some dates are outside any period the accused was actually at the school. She commenced work in 2009 relevantly on 30 January 2009. Term 1 finished on 6 April and recommenced on 1 May. The 29th June was her last day at work. She worked from about 4.30pm on a Friday until 11am on the Monday.

COUNT 1

39Between Thursday the 29th of January 2009(?) and Wednesday the 8th of April 2009 the accused was speaking to a pupil JP in a dormitory. JP went to see the accused "Just to see Mrs [CJ]". [JP 6/8/09 p12 Q153] The accused said, "Would you like to feel my breasts?" JP replied, "Yes". What JP said was "Well I went down to the hospital and stuff like, and I said like, and she'd like you can feel my breasts". [JP 6/8/09 p5 Q49] The accused told JP "If you feel my breasts, we've got to do it some place secret, some place, like, safe...". [JP 6/8/09 p.16 Q202] The accused led him to a bathroom (although JP had initially said it was in H Dormitory - this is the lie referred to) in the boarding house, and lifted her shirt and bra to expose her breasts. JP said that she "lifted up her shirt but like I lifted up her shirt". [Q 115] The complainant reached out and touched her exposed breasts. The accused and the complainant left the bathroom.

COUNT 2

  1. About 7pm on Friday the 20th of March 2009, five boys camped for the night at a camping area within the school grounds. The camp group consisted of JP, AC, TT, HB and EC who were all Year 6 boarders. The children set up two tents, one belonging to JP and another belonging to the school. At 10 or 11 o'clock that evening the accused went to the camp site and entered JP's tent. At this time the complainant and the witnesses were all inside JP's tent talking. The accused told the boys that she had experienced trouble walking to the campsite in the dark, but she had turned off her torch because she didn't want anyone to see her. [JP 6/8/09 p.23 Q293]. The accused was dressed in a black t-shirt, and tight black jeans [JP 6/8/09 p.25 Q319] Another witness, AC, describes two of the boys having torches one of which the battery went flat and there only being two torches. [AC 11/8/09 p18 Q154] The accused had a conversation with the boys in relation to sexual positions, history and locations she favoured. During the conversation, the accused had her hand between JP's shirt and his bare back and was scratching his back. [JP 6/8/09 p.20]

  2. Within the hearing of the other boys, she told JP repeatedly "Just let me give you a blow job please", and said words like "Come on just let me do it". The accused was forcing JP to kiss her, and was biting and touching him. [JP 6/8/09 p.24] JP repeatedly refused, saying words to the effect of "No, I don't want to, I'm tired". At times he moved away from the accused and said "No, just go away ... Do it to somebody else". JP said to the accused "Why don't you do it to H or T instead of me" and the accused replied "Because I only like you". [JP 6/8/09 p.25 Q328] The accused said "Come on, just a minute" and JP replied, "Ok, I'll give you 60 seconds" or "Fine, hurry up", and the accused told the other boys to leave the tent.

  3. The other boys started to leave the tent, and as HB was leaving the tent, the accused started to pull down JP's shorts and placed her hand on his penis. After the other boys left the tent, the accused performed fellatio on JP for 30 to 60 seconds. Either the accused or JP called the other boys back in and, after some further conversation with the boys, the accused left the tent. After she left, JP told the other boys "She just gave me a blow job". The accused came back to the campsite in the morning to help the boys pack up. There was conversation with the accused about what had happened the previous evening. The accused told the boys that, after she left the tent, she lay outside the tent listening to them talk.

COUNT 3

  1. On the 21st of March 2009 the accused and FD were attending a school swimming carnival. Near the swimming pool, outside the Sewing Room, FD approached the accused and said, "Is it true that you showed some boys your tits?" FD had heard reports about the incident that had occurred the previous night. The accused laughed and said, "How do you know about that?" FD said, "Can I see them?" the accused said, "Yes." The accused led FD into the rear room of the sewing area and locked the door. She lifted up her top and bra to reveal her bare breasts. She asked FD whether he wanted to feel her breasts, and then allowed him to touch her breasts with both hands for about 40 seconds. As they left the room the accused told FD "Quick, quick you go in front so that it does not look suspicious". [FD p7 Q86-95. p9 Q110-219, p.21 Q251-253]

COUNTS 4-8

  1. On Saturday the 4th of April 2009, OL, EC, TS, JM and JP were camping at a location in the school grounds. The camping was not supervised, but teachers attended the campsites at unallocated intervals. It was not part of the duties of the accused to supervise any aspect of the camping. At about 10pm, the accused attended the campsite and entered a tent, all five children were inside. The accused asked "Does anyone want a blow job?" [JP 23/12/09 p.11 Q113] The accused was scratching JP on the back and flirting with him. She asked if it was OK with everyone for her to "give him a blowjob". JP agreed and said that he didn't mind. [JM p.5 Q54] The accused took all of her clothes off and she was naked in front of the five children.

  2. COUNT 4 After taking off her clothes, the accused covered her head with JP's sleeping bag and performed fellatio on JP for about 5 minutes. This occurred in the presence of the other boys. [JP 23/12/09 p.5 Q328] [TS p11-12] [JM p.5 Q54]

  3. COUNT 5 The accused then used the sleeping bag to cover her head and half of TS's body. The accused pulled down the child's pants and performed fellatio on him for about a minute. This occurred in the presence of the other boys. [JP 23/12/09 p.5 Q42, p.13 Q145] [TS p.13 Q151 ]

  4. COUNT 6 OL moved under the sleeping bag, and the accused performed fellatio on the child for less than 5 minutes. This occurred in the presence of the other boys. In his interview, OL recalled that while she was taking off the pants of the boys, the accused was pressuring them with words like "Come on let's go. Don't be a puss". OL said that this made him feel "like a wimp" until he did it. [24/9/09 OL p.41 Q540-542]

  5. COUNT 7 OL moved out from underneath the sleeping bag and JM moved under it. The accused performed fellatio on the child for two or three minutes. This occurred in the presence of the other boys. [JM p.15 Q170] By this time, the accused had said that she was too hot under the sleeping bag, so she asked JP to hold up a towel while she continued to perform fellatio on the child. [JM p.12 Q139]

  6. COUNT 8 The accused continued to perform fellatio on JM while JP had penile-vaginal intercourse with her for about 20 seconds. [JP 23/12/09 p.16 Q188]

  7. The accused dressed quickly and ran out into the trees because she thought that a teacher was approaching. She returned to the group and talked with them for a while, before she finally left. [JP 23/12/09 p.19 Q214-7] [JM p.6 Q55. p16 Q194]

COUNTS 9-12

  1. COUNT 9 On the evening of May 17 2009, AC and FD feigned illness and were sent to the school hospital (sick bay). The accused was responsible for the care of sick students, and she walked the two children to the hospital. [AC 24/9/09 p.13 Q124] FD made repeated requests for a "blow job", and the accused agreed. The accused had a shower whilst the children watched television. The accused returned with a dressing gown on and told the boys that they could come into the residential unit which adjoined the school hospital. This unit was occupied by the accused when she worked weekends at the school.

  2. Just before the accused had sex with the boys a member of staff telephoned about another sick boy, the accused told the others to be quiet, and told the staff member that the other boy should not come to the hospital as he may be infected by FD and AC. [FD p44 Q473] FD and AC walked into the unit with the accused. The accused tried to light some candles but was unsuccessful. She pulled the curtains closed and shut the door. [FD p37A414] AC lay down on the bed, and the accused kneeled on the bed and performed fellatio on the child for about five minutes. FD was present.

  3. COUNT 10 AC and FD swapped positions. FD lay on the bed, and the accused performed oral sex on FD whilst AC was present. [AC 24/9/09 p.20 Q162] AC, FD and the accused walked out of the flat to the hospital sick bay and started watching television.

  4. COUNT 11 A short time later FD asked the accused to have sex with him, and after initially refusing, the accused said "Okay, F you come in and then, A you can come in when F comes out". The accused and FD walked back into the unit. They removed all of their clothes. [AC 24/9/09 p.14 Q124] The accused gave FD a pink vibrator and FD inserted the vibrator inside her vagina. [FD p49 519]

  5. COUNT 12 During this period, AC lay on his back on the bed. He was only wearing his singlet. The accused was naked. She lay on top of the child and had penile vaginal sexual intercourse with him while moving herself up and down. [AC 24/9/09 p.21 Q170]. The accused dressed quickly when she heard the sound of a door shutting and when she realised it was FD she said "Oh it's only him" and when FD said "It's only me" the accused said "Oh, and that was, that's good". [AC 24/9/09 p.23 Q195] The accused then watched some television with FD and AC. At about 10 o'clock the accused told the boys that she was tired and she retired to bed.

COUNTS 13-15

  1. COUNT 13 Between 1 February 2009 and 2 July 2009 JP, OL and TS attended the school hospital - the boys went to the hospital after OL (who had not previously been involved in any offences) told JP that he wanted to have sex with the accused. A fourth boy, NC, came along as well but the accused did not want him there so OL told NC to leave. [24/9/09 OL p.5 Q51] The accused and the three boys sat in the sick bay talking. Then the accused took the two boys into the unit she occupied at the rear of the hospital. While the other two boys watched, the accused took her shirt off to expose her bra, and said "So who is going to go first?" and JP told OL to go first. [JP 23/12/09 p.26 Q302] The accused then took OL into a back room, removed all her clothes and had penile vaginal sexual intercourse with OL on a bed. [24/9/09 OL p.10-12] OL left the back room and returned to the sick bay.

  2. COUNT 14 JP went to the back room. The accused removed her pants and underwear and had penile-vaginal sexual intercourse with the child who lay on top of her. JP stopped because he was going to ejaculate. [JP 23/12/09 p.20 Q233, p28-9 Q325-336] At some point TS walked in while they were engaged in intercourse. JP walked out of the rear room of the hospital and sat on the bed with OL.

  1. COUNT 15 TS walked out into the rear room. The accused was lying on the bed. The accused took off her pants and had penile-vaginal sexual intercourse with the child. [TS p22-30]

COUNT 16

  1. At about 8.15pm Friday the 29th of May 2009 OL was sick with a headache. The accused attended the dormitory and escorted the child to the hospital. About half an hour later, the accused started kissing the child on one of the beds in the sick bay. [24/9/09 OL p.16] The accused then took OL into her adjacent flat and took off her clothes. OL took off his clothes and the accused lay down on her back on the bed and had penile-vaginal sexual intercourse with the child. [24/9/09 OL p.19-24] The accused noted in the hospital records that the child was experiencing bouts of coughing, that he complained of a persistent headache, and that he took a few hours to settle down to sleep.

COUNT 17

  1. On Sunday the 31st of May 2009 OL was again sick with a headache. The accused attended the dormitory took the child's temperature. She escorted him to the sick bay. The accused kissed the child on the hospital bed. The accused took OL into her adjacent flat and lay down on her back on the bed and had penile-vaginal sexual intercourse with the child. The child recalls that this continued for an hour. During this incident, the accused was saying things like "I love you" to the child. [24/9/09 OL p.24-29]

COUNT 18

  1. On the 28th of June 2009 AC was sick and vomiting. At about 7pm, the accused attended the dormitory and escorted the child to the sick bay. The accused entered the sick bay in her dressing gown and AC asked if he could feel her breasts. The accused agreed and took off her dressing gown and lifted up her top. She allowed AC to feel her bare breasts with both of his hands for some minutes while he was watching television. [AC 24/9/09 p.33 Q268] The accused then lay down on the bed with the child and they had a conversation about the child's family farm.

COUNTS 19-20

  1. COUNT 19 Between the 1st of February 2009 and the 2nd of July 2009 FD and AC were in the dormitory. It was before lunch. FD had heard that the accused had given another boy a "blow job", so he and AC asked the accused whether they could have a "blow job". The accused said that she did not know if she should, because she was aware that FD had told the headmaster's daughter about previous offences. FD was persistent and they "were begging" the accused. [FD at Q303]. FD assured her that he was not going to tell anyone, so the accused agreed. [FD p.25 A280]. [AC 24/9/09 p.5 Q52, p.8 Q80] FD said that the accused said to him "I'll do it with you again in a couple of weeks, if you keep being nice to me. Cause I just wanna give it to you now because my brains just on ..." [FD p25 Q280] The accused took FD and AC to an area of the school grounds called "Year 6 Wilderness". As they were walking down there the accused was continually looking around to ensure that there were no teachers [FD p.24 A278]. The accused said "Who's going first" and FD said "Oh I will", and the accused said "Oh well you can look out, A". [FD p.24 A278]. [AC 24/9/09 p.9 Q89] AC kept a lookout some 50 metres away while FD sat up against a tree. The accused performed fellatio on FD for about two minutes.

  2. COUNT 20 FD then came to AC and tapped him on the shoulder and said "Oh it's your go. AC then went to the tree, took off his pants, and sat against the tree while the accused kneeled and performed fellatio on him for about 2-3 minutes. [AC 24/9/09 p.10Q102-104] The siren rang and the two boys left because it was meal time. The accused left ahead of them. [ FD p36 A404]

COUNT 21

  1. On a Friday afternoon between the 2nd of January 2009 and the 2nd of July 2009 FD, AC and JM were in a classroom. The accused came into the room and sat on the desk. FD was asking the accused for sex, nudging and getting up close to her. The accused asked the three boys to carry some laundry down to the hospital for her. The accused told the boys that this time she only wanted to have sex with JM. She took JM inside her flat to the bedroom and removed her clothes. The accused then had penile-vaginal sexual intercourse with the child. [JM p.18 Q206, p.18]

  2. I think it is fair to say that the above brief facts only marginally record what each of the complainants and other young persons said about what happened when interviewed by police. Some of the interviews were conducted with the young person alone and some with a family member or member of the staff from the school present. In the circumstances I don't think it appropriate to set out the full extent of what was said by any complainant, even by way of example, suffice to say that in my view it reveals in the accused, someone who exhibited a complete dis-inhibition in regard to her sexual contact with the young persons in question.

  3. On 31 July 2009, the Director of Boarding of the school interviewed JP over an allegation that another teacher would pour water over the boys to get them out of bed in the morning. During the interview, JP disclosed that the accused had been involved in inappropriate sexual behaviour with him on a number of occasions. The

  4. The school headmaster was notified of JP's disclosure. He immediately stood down the accused. He spoke to her by telephone and she told him - "I understand you're just doing your job".

  5. Accused was suspended from employment 31/7/09

  6. The accused tried to contact some boys via a third party on 7/8/09

  7. The accused sent another employee an SMS message that said "E can u do me a favour. Can you get word to the boys that im ok & tell them I miss them. But please don't tell any staff my close friends are ec, ac, ol. Please tell them hello from me & wish them the best from me; thanks my friend".

  8. On 17 August 2009 she was seen by Dr Singh, a "staff specialist" at the outpatient clinic at Forster Community Mental Health Services. He felt she was suffering from "some symptoms of depression on a background of possible personal vulnerabilities in the form of poor stress coping skill and stress around recent court case." In a later report in October 2009 he felt that based on her current presentation she was "suffering from Adjustment disorder with depressed mood in the background of possible personality vulnerabilities in form of poor stress coping skills." [Ex 1 Guide Cards (GC) 6 & 7].

  9. On Tuesday the 18th of August 2009 Police placed the accused under arrest.

  10. As may be appreciated from the above, the accused's behaviour seems to represent a sudden departure from any previous type of behaviour and only ended when a staff member received a complaint from one of the students about the accused's in-appropriate behaviour.

  11. On 20 Aug 2009 she was prescribed Avanza an anti-depressant. (Ex 5).

  12. On 11 September 2009 she saw a GP whose notes are in Ex 1 GC 9. They reveal that

"Client presented with referral for depression and anxiety on background of recent marriage breakup and court case. Says she is married to a man 18 years older than herself, but was not happy in marriage, had affair and husband forgave her, but wanted out of marriage. 2 children (22 - different father, and 16 - lives with father in Sydney). Says she has had a fairly tumultuous life, with many ups and downs. Had Information supplied by husband which indicated repeated mood changes. Court case is about alleged sexual assault of young boy when working as housemother in a Sydney school. Very upset about this, says she has strong religious beliefs and doesn't understand how she could have been involved in these actions.

Describes difficult adolescence, with many behavioural problems, including drugs and alcohol. In trouble at school and with parents, involved very early in relationship, and had first child at I8. Father diagnosed with Bipolar disorder.

Diagnosis: Client describes many symptoms consistent with bipolar disorder, changing moods, highs and lows, inappropriate behaviours, excessive energy etc. Also describes deep depressive episodes. Suggested she see a psychiatrist for a formal diagnosis and medication. Currently on anti depressants.

  1. On 2 Oct 09 she was seen again and recommended to a psychiatrist.

  2. On 14 Oct 09 she saw Ms Player a psychologist for assessment referred by her solicitors. Ms Player has provided a report (Ex 1 GC 5) and has given evidence. She concluded that the accused was of average intelligence. After administering a number of tests she concluded that her "difficulties do not appear to constitute a mental illness such as bi polar disorder. Rather they reflect a pervasive dysfunction of personality particularly with regard to borderline and dependant traits that would be expected to worsen at times of stress. *** Her current sexual offending behaviour seems to be best understood in the context of her entrenched dysfunction of primarily dependent and borderline personality traits, sexual deviance and hypersexuality, as well as lack of insight about appropriate sexual boundaries with age-appropriate peers."

  3. On 22 Oct 09 her GP reported that:-

"[CJ] reported that she had been to see clinical psychologist who had done a report. Solicitor indicated that report was fairly inconclusive and did not really give any information about [CJ]'s mental health Issues. Asked for copy of report. [CJ] indicated that her depressed mood is improving since she has been on anti-depressant medications. Has been involved in family issues recently as a relative had died. Also said there had been another appearance at court, and more photos taken by the local press. Concerned these may be in newspaper. Had a discussion with [CJ] about the seriousness of the charges and possible outcomes. She indicated that she was prepared to face consequences, and realised that she had done the wrong thing. She said that she has never really understood her behaviour, as she has strong religious beliefs and would not choose to act in this way. Reminded about coping strategies, relaxation, focusing mind etc.

  1. On 12 Nov 09 her GP noted:-

[CJ] appears happier today. Reports that she has been trying to get involved in doing things. Has applied for job at Tuncurry Bowling Club, and is waiting for outcome of interview. Says she believes anti-depressants are working, and her mood has improved. Discussed psychologist report, told [CJ] that it was very inconclusive. Discussed her childhood and current self esteem issues, and how this may impact on her. [CJ] again said she believes she acts in two different ways, one as a normal adult, and one as a child, and she does not seem to have much control over this. However, she does want to understand herself better. Suggested she try to use C8T techniques to find out her deep down beliefs. Also given Ellis handout to look at irrational beliefs (says she always wants to please people, and wants people to like her).

  1. On 16 Nov 09 she saw Dr Nielssen who diagnosed Bi polar disorder.

  2. On 23 Dec 09 she was prescribed Lithium carbonate an anti psychotic medication, "the gold standard" in the treatment of BP1 according to Dr Richardson.

  3. 28 Jan 10 her GP noted that she "was doing hospitality course at TAFE, has also applied for part time work, but has not been able to do this (although offered job) because of criminal record check. Unhappy about this, but also accepting of the situation. Having some difficulty accepting her life situation, is worried about being financially dependent on mother. Continues to take medication as provided- Believes that psychiatrist's diagnosis of Bipolar disorder explains many of the difficulties she has had in her life, and says she feels much more settled and in control on medication".

  4. On 5 Feb 2010 she involved herself in an horrific incident with a male person on some sort of parole who imprisoned, raped and sodomised her. She made a statement to police on 14 Feb 2010 about what had happened. (Ex 1 GC 70)

  5. Late in February 2010 she was seen by a psychiatrist, Dr Chamoli, from the Manning Mental Health Service on behalf of Dr Singh who was away. In a letter to Dr Babic he said that there were nil signs of bi polar disorder longitudinally and the historical evidence (of BP) was very vague. He also disagreed with the prescription of Lithium suggesting it was merely of use prophylactically. He made no mention of the incident of 5 Feb 2010.

  6. However on 12 March 2010 her GP reported:-

Doing OK. Reports that medication is very helpful. Continues to have ups and downs in her life. Described very traumatic situation recently when she went to Sydney, apparently became involved with a man she met at a railway station, and ended up being physically and sexually abused by him. Managed to get away after being virtually held prisoner, and was able to notify police, who have now charged him, (??? Bipolar manic episode). Appears to find herself in very difficult situations from time to time, however is presenting much more stable than she was when therapy started.

  1. She continued to see her GP from time to time who continued her medication.

  2. She saw Prof Greenberg on 3rd and 6th May 2010.

  3. On 14 May she returned to her GP who noted:-

Appears settled today. Affect normal, and reports no distressing symptoms. Has finished TAFE course and is doing some part time work. Saw psychiatrist employed by DPP in Sydney last week and is waiting on his report, said it a gruelling interview, 4 hours one day and 2 hours a few days later. Said she told him the truth about everything, and that he asked her many questions about her past. Does not appear too concerned about the result of the interview. Apparently she told him about occasionally hearing voices, which I do not recall her mentioning to me before. She explained that it was a relatively new symptom which had occured in past few months. Appears settled psychologically on medication. Is thinking about her future. No issues today. Appointments now set 4 weekly.

  1. Finally on 9 July 2010 she was referred to Dr Richardson, a psychiatrist at the Mayo Specialist Centre in Taree, and she has been seeing him monthly since, except for the period she was in custody after the first trial.

  2. In his first report of 9 July 2010 Dr Richardson said:-

"[CJ] is currently well. She is not in any doubt about that. She is an authentic historian in this regard.

[CJ]'s first mood swings occurred when she was a teenager. She went, into an abusive de facto relationship at the age of 14. It was to extend over 6 years. She had multiple depressive episodes during this lime. When she suffered a depressive episode it would be with an abrupt onset. She would straight away lock herself away from the world. She would have no contact with her loved ones. She was not able to pursue her interests. Her standards would decline. She wasn't able to maintain looking after herself whilst normally she is a perfectionist. When she was depressed she was lethargic and would sleep excessively. The depressive episodes could last up to one month and were persistent and pervasive.

They often ended by [CJ] switching into a high. She would then get persistent and pervasive mood elevation. She would suddenly acquire a lot of energy. She would suddenly require far less sleep. She was often financially indiscreet and she felt terrific. These episodes were not as protracted as the depressive episodes and her mood might revert simply to normal or back into a depressive episode. Over the years her mood swings became more frequent to the point of very rapid cycling so that she could not predict one week to the next.

When [CJ] was elevated she felt quite different. I asked her to explain how on earth she could account for the allegations against her and she replied that it was very difficult for her to understand what did happen during those episodes. She was striving officiously to try and make sense of them. She knew how doctors could account, for it in terms of mania and biochemical changes and hormonal changes and psychological vulnerability but ultimately it didn't really make sense to her. She remembers that during the periods that she was elevated and having inappropriate sexual relationships, she saw herself alternatively as a child, as a rock star or as a goddess. She knew what she was doing was wrong. She wanted to be able to stop it. She is a Christian at heart. She was unable to control her libidinous impulses whilst in a euphoric state.

Some 10 months ago [CJ] was started on lithium carbonate, a powerful mood stabiliser in bipolar disorder type 1. At the same time she was put on Abilify and this combination gave her very unpleasant side effects. It resulted in her being verbally hallucinated, dribbling saliva, and very tremulous. At the beginning of this year she stopped both of her medications. Very shortly after stopping her medication she was again elevated. She foolishly entered a ludicrous, very casual sexual relationship only to be incarcerated for days in a warehouse and repeatedly raped. I mention this incident in order to demonstrate that it was not simply others that have suffered by virtue of [CJ]'s abnormal mood states. She herself is very vulnerable when her mood is abnormally elevated.

[CJ]'s father may well have a bipolar disorder. It is something that he doesn't accept but the family stories include his having episodes of sexual indiscretion. [CJ] was 13 when her mum and dad separated. She has no memory of positive parenting. Rather she describes a chaotic and not overtly affectionate relationship.

  1. What is not in dispute, at least by Prof Greenberg and Dr Richardson, is that the accused suffers from a serious personality disorder. A personality disorder per se is not a disease of the mind (cf R v hodges (1985) 19 A Crim R 129) but will often be present with other factors which do qualify as a disease of the mind and will clearly have an impact on a persons behaviour in a given context. (Crime and Mental Health Law in NSW Howard & Westmore - 2005 - Lexis Nexis Butterworths pp166-7).

  2. Prof Greenberg is not of the view that the accused has BP1 and is at odds with Drs Nielssen and Richardson, although in evidence, Dr Richardson said somewhat unhelpfully, that he agreed with both. Drs Nielssen and Richardson agree that the accused suffered from BP1 at the time of her offending behaviour.

  3. Having regard to the evidence, it seems to me that there is no bright line separating BP1, BP2 and other illnesses such as dysthymia and cyclothymia and that it is rather a question of degree which is significantly dependant on the view of the clinician. That does not mean that one is wrong and another is right it simply reflects a legitimate divergence of opinion. However that divergence is not solved by a mechanistic reference to the DSM IV. Differences in peer professional opinion are not unusual and the Civil Liability Act recognises that such differences, of themselves, are not sufficient to found a cause of action in negligence (see s.5O).

  4. Psychiatry and psychology are, to a significant extent, less exact sciences than physical medicine. However I am satisfied that it is more probable than not that at the time of the offending, the accused was suffering from bipolar one disorder. In particular I rely on what Dr Nielssen found when he saw her in November 2009 that

"she was quite disorganised in her thinking in a way that I found to be consistent with chronic mental illness, and it was my advice to her that she consider treatment with a low dose of an antipsychotic medication, both because of the initial manifestation of this relapsing illness with what seemed to be a fairly typical paranoid episode and the quality of her communication at the time of the interview when her answers were quite illogical, there was a number of non sequiturs, odd usages that I thought were objective features of an underlying mental illness". (TP 77).

  1. In his report (Ex 2) at p6 he said on examination that:-

"Her mood was thought to be mildly depressed, from her expression and the quality of her answers. It was soon apparent that she had some kind of underlying psychotic illness from her disorganised speech and difficulty getting to the point in her answers. There were a number of odd usages and non-sequiturs that were thought to be consistent with the disorder of form of thought seen in under-treated psychotic illness. She denied experiencing typical symptoms of schizophrenia-like psychosis, although she reported transient persecutory beliefs in the past. She was alert and correctly oriented and had some knowledge of recent events. However, her capacity to retrieve of information in a prompt and orderly way was thought to be mildly impaired because of her communication disorder. Her premorbid intelligence was estimated to be within the normal range, from her vocabulary and general knowledge."

Q. But part of what you took into account was the history that she gave you in relation to her conditions of moods during various periods of time?

A. That's right.

  1. The Crown argues that in this passage Dr Nielssen accepts that when considering whether the accused knew what she was doing was wrong, the best indicator of her mental state was what she was doing and saying at the time. The argument is that the best guidance as to the accused's level of understanding and appreciation of her actions and her ability to reason is the evidence of what she did and said during a lengthy period of offending. I do not necessarily agree that the Crown's proposition can be drawn from that passage but in any event, it is not the sole indicator of mental state and as all the experts contend, one has to look at the overall picture.

  2. As to the offences themselves the Crown argues that:

1. There was planning involved in some of the offences, for example the purchase of the vibrator. Whilst this did happen, in my view it is more indicative of bizarre and inappropriate behaviour on her part, whether or not she obtained the item at the behest of a complainant.

2. Each of the counts in the indictment is characterised at least to some extent by behaviour on the part of the accused to prevent detection and hide her offending conduct. This behaviour in question is to say the least basic and nothing out of the ordinary suggestive of a high order plan to cover up by the accused. As has been pointed out, despite the accused's crude attempts to avoid detection, it was inevitable that detection would occur, particularly having regard to the number of boys involved and the nature of the activities themselves. If anything, the accused's behaviour is objectively more irrational than rational having regard to the circumstances.

  1. The Crown also relies on the accused's descriptions of her thoughts at the time in that:-

1.The accused did not tell Dr Nielssen that she did not know it was wrong at the time.

2.The accused told Professor Greenberg that "she felt God was watching her and that it was morally wrong at that time". She also states that she felt she "had to pay one day" and that "she felt disgusted with herself". The accused explained that she felt as if she had two minds fighting with each other "one telling her she was disgusting and one telling her that she had a feeling of being high and worshipped by the boys". This is consistent with the fact that she told JP at the time that what they were doing was "severe on me".

3.The accused told JP that if anyone found out she could go to gaol.

4.The accused told Professor Greenberg that she had said "from time to time she thought about the consequences but says that at the time she was "deluded". In the context of describing her relationship with J she again admitted that she knew it was wrong at the time.

5.The accused said that she considered that she was giving the boys sex education, this is also consistent with the Facebook message to JP Tab 50 p.36 where she refers to him "learning a few things that can help you with girls";

6.The accused wrote to FD on Face book on 16/6/09 and said "I can not do it anymore with anyone" Tab 50 p.43. This is clearly a reference to the sexual activity as she told Professor Greenberg that she had written to one of the boys on Facebook that she was not going to do it anymore.

7.The told Professor Greenberg that the boys had talked her out of stopping the offending.

8.The accused denied a shy boy sex and arranged for him to leave before continuing with the alleged victims.

9.She reported another occasion where she refused AC sex because she felt bad.

10.The accused told Dr Richardson that she knew at the time that it was wrong [T p.135]

11.In her email to Alan Johnson prior to her arrest on 3/8/09 the accused spoke of her "horrible mistakes" and said "I am not all bad I am actually a very good person that just needs to change her thoughts and feelings and moral and get back to the good morals I once had. I have just gotten lost and followed the wrong path and I know I can get back to the good person that I am or can be" Tab 50 p.48.

  1. The Crown says that this evidence is persuasive of an ability to reason, to recognise the wrongfulness of her actions, to recognise that punishment would inevitably follow discovery and disgust at her own criminal behaviour. The steps that she took to prevent discovery speak overwhelmingly of her knowledge and clear understanding that what she was doing was wrong at the time of the offences.

  2. At TP 136 in cross examination Dr Richardson was asked as follows:-

Q. Those actions, conducts, words by her all indicate that at the time she did know what she was doing was wrong. You'd agree with that?

A. She did. She dismissed those ideas that she was wrong. But she did know that she was wrong.

Q. But she took action because she knew she was wrong.

A. She did.

Q. It wasn't just a bland dismissal, she was actually careful, cautious, covering up?

A. Well, my understanding that it wasn't careful or cautious. She certainly was trying in a crude way to stop the boys talking about it, and posting lookouts, and being aware of the headmaster's presence. But I don't think there was - I don't think she was cautious or measured in those, she was just operating with a modicum of insight that what she was doing was dreadfully wrong.

Q. But given her personality disorder, her limits and capabilities, the fact that she behaves like a teenager, she would have been acting to the best of her ability in the steps that she took to try to cover up what was going on. Do you agree with that?

A. No, she - she wouldn't have been able to cover up as best as she could just simply by virtue of her personality limitations. Her - she would have had difficulty in covering up. In other words, inevitably there would have had to have been a downfall, because she isn't sufficiently astute in herself to be able to chronically deceive. She doesn't really understand the minds of others.

Q. But that's due to her personality disorder.

A. In the setting of her being very elevated at the time.

  1. And the on the following page:-

Q. One of the things you said was that she was not so mad that she did not think it was wrong.

A. That's right.

Q. But she could not control it.

A. But she couldn't control it.

Q. Are you saying basically it was an irresistible impulse?

A. Yes.

  1. I do not think that what the doctor was referring to here was an 'irresistible impulse' as understood in the law from such cases as R v Codere (1916) Cr App R 21 and Sodeman. Whilst disavowing the notion of irresistible impulse that has been raised unsuccessfully in Codere, Dixon J said in Sodeman "...it is important to bear steadily in mind that if through disorder of the faculties a prisoner is incapable of controlling his relevant acts, this may afford the strongest reason for supposing that he is incapable of forming a judgment that they are wrong, and in some cases even of understanding their nature. It is also necessary to remember that many people find the expression "understand the nature and quality of the act" anything but illuminating. ... Applied to such a case as the present, it appears to me to mean the capacity to comprehend the significance of the act ... and of the acts by means of which it (the act) was done."

  2. The Crown argues further that whether the accused was suffering from Bipolar I Disorder, cyclothymia or dysthmia and severe personality disorder, the events at the time of the offending conduct illustrate conclusively that she knew what she was doing was wrong. Whilst her judgment was clearly impaired by reason of her severe personality disorder, her actions were more consistent with paedophilic tendencies rather than a mental illness that deprives her of criminal responsibility. The Crown submits that the only conclusion that can be drawn from the circumstances of the offending is that the accused knew that her acts were wrong and as such, the defence of mental illness is not available to the accused. The Crown says that the law does and should not countenance an extension of the defence to the current factual situation.

  3. In my view it is unhelpfull to be considering paedophylic tendencies in this matter as any evidence supportive of such a view is far from clear except insofar as the offences themselves involved an adult and young children. Apart from the acts themselves there is no evidence of any paedophylic behaviour on her part either before or since. In fact her sexual behaviour since has been anything but paedophylic and I do not accept, without knowing more about those circumstances, that her involvement with a younger boy when she was 19 is any evidence of paedophylia.

  4. What Dixon J said in Porter and Sodeman is the current law, and must be the basis upon which an assessment needs to be made by me as to whether I can be satisfied that if it is more probable than not that the accused could not reason about the matter with a moderate degree of sense and composure then I can say that she did not know that what she was doing was wrong.

  5. What I draw from the authorities, and what seems to be argued in the present case by the defence, is that if an accused suffers from a mental illness at the time of offending and understands the facts of what has been done and knows that such acts are wrong, a defence of mental illness may still be available if it is established, on the balance of probabilities, that it is impossible for her to have reasoned with some moderate degree of calmness in relation to the moral quality of what she is doing, she would therefore be prevented from knowing that what she does is wrong. What seems to be being said is that there is a distinction between simply having knowledge that something is wrong at a superficial level and having an understanding at the time of why it is wrong.

  6. That argument is somewhat akin to the argument run in Wilgoss, which was rejected in the High Court. In that case the argument suggested to the court was that the accused "could not "know" that the act he did was wrong because "knowledge" of right and wrong should include to some degree the capacity to appreciate or "feel" the effect of his actions upon others and perhaps himself. Because he was a psychopath he did not have such feelings and thus, it was argued, a knowledge of wrongness. That proposition was rejected by the High Court.

  7. Dr Richardson said at TP 123 that the accused "is superficial, she's trite, she's inauthentic, she's vacuous, she's psychologically illiterate, she's emotionally illiterate. She had that, plus, at the time she was supremely energised and had an elevated mood. She could still have wanted to conceal aspects of what she was doing. She wasn't that mad, that ill, at a psychotic level that she didn't know that it was wrong, but at a superficial, trite way, and she dismissed it straight out of her mind and went forward with the sexual assaults."

  8. If that is the case then it seems to me that the accused fits within what Dixon J said in Porter in that it was impossible for her to reason with some moderate degree of calmness in relation to the moral quality of what she was doing such that she was prevented from knowing that what she was doing was wrong. In other words her BPD and personality disorder robbed her of the true capacity to understand the moral quality of what she was doing was wrong.

  9. That is a position also supported by Dr Nielssen but not by Prof Greenberg who, apart from that, also found that she was not suffering from a mental illness. That view of his as to her lack of mental illness, naturally led to him concluding that she therefore knew that what she was doing was wrong. Whilst Prof Greenberg has significant academic and forensic experience, Dr Nielssen has considerable clinical and forensic experience and Dr Richardson has been treating the accused for over two years. It is unfortunate that the two forensic experts views are so polarised when the issue to be decided is complex and unusual.

  10. This is not a single incident case. Whilst I am not obliged to follow the opinions of any experts, I am not a psychiatrist or a psychologist and although I have a reasonable understanding of mental health issues vis a vis the criminal law, having studied Forensic Psychiatry, been a magistrate doing hearings under the Mental Health Act and in both the criminal and civil jurisdiction of this court, this is not a case where I would be confident in taking a course outside the two expert streams of opinion referred to above. That being said, in my view the approach adopted by Drs Nielssen and Richardson seems to me to adopt more of a realistic approach to the issues relevant to the accused's mental illness than is evident in Professor Greenberg's opinions.

  11. Black letter law is ill suited to dealing with the problems created by derangements of the human mind which can be many and varied and can express themselves in as many and varied ways as there are people in society. As discussed above, the issue of the state of mind in regard to wrongness goes somewhat beyond the words of the M'Naghten Rules, requiring an application of the considerations set out by Dixon J in the cases of Porter and Sodeman.

  12. Having regard to the above, on the balance of probabilities, I find a special verdict that the accused is Not Guilty on the grounds of mental illness in respect to each count on the indictment.

  13. CJ is referred to the Mental Health Review Tribunal for review and I direct that the registry immediately notify the Tribunal and the Minister for Health of this result.

  14. Having heard the parties on whether or not she should be kept in custody pending review by the Tribunal or released conditionally, I am satisfied on the balance of probabilities that, under s39 of the Act, her release does not at the moment constitute a serious danger to herself or others. She is released on conditions, parts of which are not appropriate for publication, which include a residential condition, conditions to avoid certain places or to contact certain persons, a condition to continue treatment with Dr Richardson, a condition to be of good behaviour, a condition to comply with existing AVOs, a condition to obey the directions of the Tribunal and a condition as to arrest on failure to comply with the conditions.

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Amendments

03 November 2014 - Anonymisation of names


Amended paragraphs: 41, 43,112,116 & 141

03 February 2022 - Accused's name anonymised.

Decision last updated: 03 February 2022

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Statutory Material Cited

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The State of Western Australia v Jones [2018] WASC 395
The State of Western Australia v Jones [2018] WASC 395
R v Fernando [2011] NSWSC 1556