R v EY (No 2) - [2012] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v EY (No 2)
[2012] SASC 116
Judgment of The Honourable Justice Sulan
10 July 2012
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
Defendant charged with manslaughter - alleged offending involved defendant giving birth to infant in family home - infant left outside on neighbour's premises exposed to elements - application pursuant to section 269C that defendant was mentally incompetent to commit the offence - nature and quality considered, wrongfulness considered.
Held: Application refused - defendant mentally competent to commit offence.
Criminal Law Consolidation Act 1935 (SA) s 269A, s 269C, s 269H, s 269FA; Crimes Act 1900 (NSW), referred to.
R v Ey (2011) 110 SASR 476; The King v Porter (1936) 55 CLR 182; Stapleton v The Queen (1952) 86 CLR 358, applied.
Sodeman v The King (1936) 55 CLR 192; R v Balaban [1953] SASR 282; The Queen v M [1977] 16 SASR 589; Regina v Jones [1996] NSWSC 124; Willgoss v The Queen [1960] 105 CLR 295, considered.

R v EY (No 2)
[2012] SASC 116
Criminal: Application

SULAN J: The defendant, Lara Daphne Ey, has pleaded not guilty to the offence of manslaughter on the ground that she was mentally incompetent to commit the offence, pursuant to section 269C of the Criminal Law Consolidation Act 1935 (SA). The objective facts are not admitted. The application was heard in conjunction with a voir dire application to exclude particular conversations between the accused and police. That application will be the subject of separate reasons.
The defendant pleaded not guilty to the offence of manslaughter. The particulars of the charge are that on 7 July 2008 she unlawfully caused the death of an infant born on 6 July or 7 July 2008.
The background of the alleged offending is that the defendant gave birth to a live male infant in the toilet of the family home, either late on 6 July or in the early hours of the morning on 7 July 2008. No other family member was alerted to the fact that she was giving birth, or had given birth. Following the birth, and having cleaned up the area, she wrapped the infant, umbilical cord and placenta in newspaper. She then carried the infant wrapped in the newspaper outside, where she left him on the side of the driveway to the neighbour’s premises. At 7:55am on 7 July, the neighbour, Mr David Ellis, discovered the body of the deceased infant lying on gravel alongside the fence to his premises. The infant was lying on top of wet newspaper. His body was uncovered and exposed to the elements. The umbilical cord and placenta were still attached.
Pursuant to section 269H of the Act, the defendant applied to be declared mentally unfit to stand trial. On 16 September 2011 I refused that application.[1] Following that decision, and upon receiving a further psychiatric opinion from Dr Craig Raeside, the defendant pleaded not guilty on the ground of mental incompetence. I was informed by counsel that there was a further issue relating to the objective elements. Counsel for the DPP and counsel for the defendant both submitted that I should determine the mental competence issue first. I agreed and directed that the question of mental competence of the defendant be determined before any trial relating to the objective elements. The application to exclude evidence of statements made by the defendant to police was heard in conjunction with the issue of mental competence.
[1] R v Ey (2011) 110 SASR 476.
Section 269C Application
Section 269C of the Act states:
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment-
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; or
(c) is unable to control the conduct.
Section 269C(c) is not relevant to this matter. There is no evidence that the defendant was unable to control her conduct, nor was such a basis for mental incompetence pursued.
Section 269D of the Act provides that a person’s mental competence to commit an offence is to be presumed unless otherwise found. The onus of proof lies with the defendant on the balance of probabilities.[2]
[2] Criminal Law Consolidation Act 1935 (SA), section 269FA(3).
Mental impairment
The first question that arises is whether the defendant was suffering from a mental impairment at the time of the offence. Mental impairment is defined to include an intellectual disability.[3] Dr Raeside, an experienced forensic psychiatrist, gave evidence that the defendant has an intellectual disability. He said the defendant’s demeanour, interaction and responses to questions in evidence were consistent with a person who is suffering from mild intellectual disability.
[3] Criminal Law Consolidation Act 1935 (SA), section 269A.
Dr Raeside first saw the defendant three weeks after the alleged offence took place. At that time, he concluded that there was no evidence of any mental illness, and was not prepared to support a mental incompetence defence. He referred the defendant to a psychologist with regard to her fitness to plead. Dr Raeside observed that the defendant has a well-documented intellectual disability. In his opinion, her verbal skills appear greater than her non-verbal skills, which gives the impression that she is more intellectually capable than she really is. He now concludes, on the balance of probabilities, she was suffering from a mental impairment at the time of the alleged offence.
Dr Maria Tomasic, a forensic psychiatrist, also examined the defendant. She was prepared to agree that the defendant is in the upper range of mild intellectual disability.
The question of whether a person suffers from an intellectual disability is essentially one to be determined by psychologists and psychiatrists. It is clear from the evidence that the defendant is mildly intellectually disabled, and I so find. In this case, both psychiatrists accept that the defendant suffers from an intellectual disability. I accept the evidence of Dr Raeside. Although Dr Tomasic has some reservations, she is prepared to accept that the defendant suffers from a mild intellectual disability.
The Act does not distinguish between degrees of intellectual disability. Once there is a finding that a person suffers an intellectual disability, that is sufficient to conclude that the person is mentally impaired.
I am satisfied, on the balance of probabilities, that the defendant suffers an intellectual disability and therefore a mental impairment within the meaning of the Act.
Section 269C(a) – Nature and quality
It is necessary to assess the defendant’s ability to know the nature and quality of her conduct, and the wrongfulness of it, in the context of the charge itself. The prosecution case relies on the following particulars:
The prosecution relies on manslaughter by criminal negligence. In particular the prosecution allege an ongoing breach of the duty owed by the accused to the newborn in failing to provide the environment necessary to sustain his life, up to and until the infant succumbed to exposure. The prosecution alleges that the failure to meet the child’s needs for protection from the elements (whether indoors or outdoors) was a substantial cause of its death, and that the breach of duty was committed in circumstances contemplated by the elements of manslaughter by criminal negligence.
[Emphasis added.]
The nature and quality of a person’s conduct relates to the physical nature of what the defendant was doing or, in this case, did not do. If a person who is mentally impaired does not realise or know or have the capacity to realise or know that his or her conduct, or failure to act, may cause the destruction of a human life, that person would not know the physical nature of what they were doing.[4]
[4] The King v Porter (1936) 55 CLR 182, 188.
Evidence of Dr Raeside
Dr Raeside first saw the defendant on 28 July 2008 approximately three weeks after the offence. At that time, he did not support a mental incompetence defence. In his report of 17 October 2008, he stated:
As noted, I could find no evidence of any mental illness at the time of the alleged offence. Although I have some concerns about Ms Ey’s intellectual capacity, clinically this does not appear to be so severe that it would render her unable to know the nature and quality of her actions, the wrongfulness of them, or be unable to control her conduct. I therefore would not support a mental incompetence defence in this matter.
In 2011, Dr Raeside changed his opinion. He gave evidence that this change was grounded on the narrowing of the particulars of the offence, and the nature of the charge. He states that determining the defendant’s mental state is complicated by the nature of the charge, which relies upon omissions rather than positive conduct.
In his report of 27 October 2011, he stated:
The actual charges against Ms Ey are clearly complex in legal terms, relating to both omission and commission of behaviour with respect to her baby’s death. There are medical issues that also impact on this. As such, in my consideration as to her mental competence I am simply focusing on the decision to act or not act immediately following the baby’s birth, in ways that might otherwise have led to the baby’s survival. It is my opinion, on the balance of probabilities, that Ms Ey’s mental impairment, the intellectual disability, impaired her ability to know the nature and quality of her actions; that is what she did or did not do and how it would directly impact on her baby. This was clearly aggravated by the uncertain factual issues with respect to when the baby actually died.
I believe that she was unable to reason with a moderate degree of sense and composure about the wrongfulness of her alleged actions (in the criminal sense).
There is no indication that she would have been unable to control her conduct.
I therefore would support a mental incompetence defence in this matter. As noted, at the time of my initial assessment I did not support such a defence, but wished further psychological assessment of her intellectual functioning, which has since occurred. Further the legal issues of the actual charges have now been clarified. In light of that information I have now reviewed this material and offered the current opinion.
Dr Raeside is of the view that the defendant’s intellectual disability contributed to her inability to reason with a moderate degree of sense and composure about what action ought to be taken in the immediate aftermath of the birth. In particular, the need to provide appropriate warmth and seek medical assistance. He considers that due to her disability, she was effectively limited in her ability to think through her options and evaluate what ought to be done.
Dr Raeside was not definitive in his view of whether the defendant understood the nature and quality of her actions, acknowledging that he had difficulty with this concept in the context of an omission rather than an act. He considers that her decision-making was overborne by factors such as whether she would be in trouble with her mother for having had sex and fallen pregnant, which would have slowed her thinking process.
It is his opinion that the defendant would understand the nature and quality of the act of wrapping the baby in newspaper and putting it outside, as well as the baby’s need for care and attention, but not sufficiently so that she knew that she ought to do other things in order to take care of the baby, such as to seek immediate help. In cross examination, Dr Raeside said that he believed she was not so mentally impaired that she was unable to know that she could have sought help, but rather her reasoning and thinking about what she should do was impaired.
Dr Raeside postulates two varying scenarios. The first is that the defendant failed to get appropriate help for purely non-intellectual and non-psychological reasons. That is, that she aimed to avoid getting into trouble with her family for having sex or being pregnant. The second that she was cognitively unable to reason through what steps should have been taken. That is, she failed to appreciate and know that her omissions might lead to significant consequences. These considerations are made in the context of the immediate aftermath of the birth, and not simply in a general sense of having given birth.
Dr Raeside distinguishes between the circumstances surrounding the actual birth, and the circumstances surrounding the placing of the baby in the drive way. In evidence, Dr Raeside made the following observation:
... I think because of her intellectual disability she lacked the ability to reason about what she should have done in that immediate aftermath. She may well have simply lacked the knowledge as to how you care for a newborn baby as well independent of her intellectual ability, but given her disability, effectively she was very limited in her ability to think through her options and think what she should do. ...
I asked the following question:
QI just want to understand that, doctor. I mean, if one assumes for a moment the baby was alive and she knew the baby was alive and she wrapped it in newspaper and left it on the driveway, do you say she wouldn’t have understood the nature and quality of what she was doing.
ANo, I think she would understand exactly what you just said, she was doing those things to the baby. The problem is, again, did she know that by not doing other things she was putting it seriously at risk. I think she would have known that a baby needs care and attention, which might have been the motive for doing those things if she thought it was still alive, but not sufficiently that she then knew she had to do other things in order to take care of the baby such as get immediate help. Someone else, for example, might have knocked on the door or may have made a phone call, anonymously, saying ‘There’s a baby on the driveway somewhere’ made some other step. So again, it’s an omission and commission. I think she would have known the nature and the quality of putting the baby on the driveway in the newspaper; whether she new adequately the other things she should have done as well, then I’d be less convinced about that.
Later in cross-examination, Dr Raeside said:
QIn dealing with the depositing of the child outside in the driveway is your position this: that in your opinion the accused failed to understand the nature and the quality of her act by leaving the child there and the consequences in so doing, namely putting the child in that environment outside in the rain.
AOkay, I don’t want to be pedantic but your question is did she fail to do so, I don’t think that’s a specific question that I can answer. If it’s did she have the capacity to know that she was doing that or that she should have done some other things, I think I can answer it.
QThen can you answer that please.
AI believe that she knew that she was placing the baby out on the driveway, she knew the time of day. She was capable of knowing the weather conditions. Earlier she knew the baby was cold and tried to warm it up. I don’t think that necessarily means she knew in a greater context about what the significance of the baby being cold is but a reflex action that if you’re cold you warm something. So I believe she knew those things and she was able to know them, notwithstanding her mental impairment. Where I have some difficulty is whether she was able to know that she should have done some other things such as drawing immediate attention from other people to the existence of a baby on the driveway, I can’t answer that question because it gets very difficult to then find evidence of a negative, which is a separate question. But all I can go on is what she did and what she didn’t do and her comment that she hoped that by putting the baby out there that that somehow would bring assistance to the baby. So that suggests she knew that the baby needed assistance, she had knowledge of the nature and quality that a newborn baby needed some type of assistance and she was obviously influenced by her thoughts of trying not to draw attention of the situation to her mother and that was influencing her as well. But I believe that her intellectual capacity rendered her at a disadvantage. Now given what we said about nature and quality I’m not quite prepared to say that I think she was unable to know the nature and quality because of that. It’s a varying level and it depends exactly on what things we are talking about but, to use your word, her failure to then seek extra assistance more directly I believe is related to her mental impairment rather than any malevolent intent towards the baby.
In cross-examination, he gave the following evidence:
HIS HONOUR:
QWhat I want to get clear in my mind is, does your opinion as to her mental state in respect of the nature and quality of her account and the wrongfulness of her act change in any way depending on the point of time at which you are considering the factual circumstances, and to be a little more specific, you have got the incidents surrounding the actual birth in the toilet as being one set of circumstance and then the placing of the baby on the driveway wrapped in newspaper as being the second, although they are inter-related to some degree. Is your opinion the same in respect of both those circumstances or one or other of those circumstances.
AYes, my opinion is the same with respect to both of them but in terms of – there are two aspects to each of them, that is, acts of commission and omission in relation to both of them as well, and they are slightly different in my consideration. One is in the toilet, the things that she did not do were more paramount than what she did do but by the time she then placed the baby in the driveway she was acting in a certain way, and there are a few things she didn’t do, such as going to the door or drawing attention. So the balance shifts, I think, between those two scenarios with her acts of omission in the first place and her acts of commission in the second place.
[Underlining is mine.]
It is my understanding of Dr Raeside’s evidence that he is of the opinion that despite her mental impairment, the defendant knew the nature and quality of her act in placing the baby outside. Further, that at an earlier point, she knew that the baby was cold, and that he needed warmth. In light of her comment that she hoped by placing the baby outside, he would receive some form of assistance, Dr Raeside considers that this suggests she had knowledge that a newborn baby needed some type of assistance, but was obviously influenced by her thoughts of trying to remove herself from the situation. He believes that in this respect, she was disadvantaged by her intellectual disability. He considers that her failure to seek extra assistance was more directly related to her mental impairment than any malevolent intent towards the baby.
I consider that Dr Raeside has imported into his opinion about the defendant’s understanding of the nature and quality of her act questions of whether she could foresee the consequence to the baby of her failure to obtain assistance. Nature and quality of the defendant’s conduct refers to the defendant’s understanding of the physical nature of her conduct. For example, if the defendant did not comprehend that she was placing a baby on the driveway, but thought it was a doll, that would amount to not understanding the nature of her act. Or, if she understood she was placing the baby on the driveway, but believed that the driveway was a warm and safe environment for a newborn and that, in so doing, the baby would be warm and not at risk, then that would amount to not understanding the quality of her conduct. The question of whether she understood that she could get help for the baby is not the correct question when considering the nature and quality of the defendant’s act.
Evidence of Dr Tomasic

Dr Tomasic does not support a mental incompetence defence. Her view as to the characterisation of the defendant’s mental impairment differs from that of Dr Raeside. Dr Tomasic acknowledges that she may be in the upper range of a low intellectual disability. She gave evidence that she disagrees with Dr Raeside’s description of the defendant as ‘naïve, and childlike’. She does not consider the defendant to be as naïve as someone who would have a mild intellectual disability in the mid-range with an IQ of 60. In Dr Tomasic’s opinion, the defendant has an awareness of her surroundings and an ability to make comments or decisions based on what she perceives to be in her best interests.
Dr Tomasic conducted a functional assessment of the defendant, as part of her clinical assessment. The assessment relates to functional aspects of a person’s life, including their self-care, language, communication skills, ability to interact and work with others as well as their academic ability. Dr Tomasic accepted that psychological assessments of the defendant placed her in the upper range of lower intellect. Ultimately, Dr Tomasic was prepared to accept that diagnosis.
Dr Tomasic expressed her opinion that it was inconceivable that the defendant did not understand that a newborn infant required care. That is, that the defendant did not understand that a newborn infant would need care immediately after birth. Dr Tomasic gave the following evidence:
AIn my opinion I found no ground for a mental impairment defence. I felt that she certainly had an adequate understanding of the nature and quality of her actions, you know, she understood she had had a baby, she understood that it was initially alive, there’s obviously been a range of opinion about when the baby stopped moving and so I, I was given one history about that but obviously there have been other reports and more recent changes to that. And she understood that she was taking the child outside, leaving it there, she understood it was cold outside because she talked about going inside because she was getting cold and she was concerned about her own health. So I felt there was nothing there to suggest to me that she did not know the nature and quality. ...
Dr Tomasic considers the defendant to have adequately understood the nature and quality of her actions in having given birth to a baby and placing it in the cold outside. She says this must be so when considering that she herself felt cold outside, and discussed going inside as she had concerns about her own health.
Conclusion
A person does not know the nature and quality of his or her act where he or she does not know the physical nature of what they are doing or its consequences.[5]
[5] The King v Porter (1936) 55 CLR 182; Sodeman v The King (1936) 55 CLR 192, 215.
I accept that the defendant suffers from a mild intellectual disability. The defendant, in her early consultation with Dr Raeside, told him that she was not aware that she was pregnant. In 2011 when she spoke to Dr Raeside, she admitted that she had figured out that she was probably pregnant. It is clear from her conversation with Dr Raeside that she feared telling her mother about the pregnancy. Dr Tomasic considers that was a significant factor in her decision to conceal the baby’s birth from her family.
I prefer the evidence of Dr Tomasic in respect of the defendant’s functioning, and capacity to understand the nature and quality of not only her act, but the baby’s need for care and attention. I consider that the defendant understood that the baby needed to be kept warm whilst she was in the toilet. She knew it was cold outside, as she herself felt this. In my view, the defendant acted whilst labouring under a preoccupation to hide her pregnancy and the birth of her child from the family. I am satisfied that, in placing the baby in the driveway, wrapped in newspaper, the defendant understood that a newborn required care. I am satisfied that the defendant knew the nature and quality of her conduct.
Section 269C(b) – Wrongfulness
As to the question of whether the defendant knew that her conduct or failure to render the baby the appropriate care was wrong, that question assumes that she was aware of the nature and quality of her conduct, but is relevant to her capacity to understand the wrongness of her conduct. In considering what is meant by “wrong”, the question to be asked is: Can I be satisfied, on the balance of probabilities, that the defendant, having regard to her mental impairment, did not know it was wrong to omit to render care or obtain assistance for the baby in the sense that an ordinary or reasonable person would understand right and wrong? Was she so disabled that she was unable to reason that, in leaving the baby exposed in the driveway, her failure to render assistance or obtain help was wrong?
Wrongfulness in the context of section 269C(b) is judged by wrongfulness in the eyes of ordinary people having regard to the everyday standards of reasonable people. It is not directed to whether the defendant knew that he or she was acting contrary to the law.[6] In R v Balaban the Full Court observed:[7]
…if the trial judge sees fit to explain to the jury the sense in which he is using the word “wrong”, the direction cannot stand if it leaves them to understand that the defence must prove that the prisoner did not know that his act was contrary to the law.
[6] Stapleton v The Queen (1952) 86 CLR 358; R v Balaban [1953] SASR 282; The Queen v M [1977] 16 SASR 589.
[7] R v Balaban [1953] SASR 282, 288.
The Court is concerned with the condition of the mind at the time the act complained of was done.[8] In The King v Porter[9] Dixon J, conducting a trial on indictment for murder in the original jurisdiction of the High Court of Australia, directed a jury on the issue of insanity at common law. Turning to the second limb of the insanity test, his Honour said:[10]
The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing but that he was quite incapable of appreciating the wrongness of the act. … 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.
[8] The King v Porter (1936) 55 CLR 182, 187.
[9] The King v Porter (1936) 55 CLR 182.
[10] The King v Porter (1936) 55 CLR 182, 189-90.
It is to be emphasised that the disease, disorder or disturbance must have been of such a character as to prevent a defendant from knowing what he or she was doing was wrong. One must draw attention to the defendant’s understanding, and whether the defendant’s functions of understanding are ‘thrown into derangement or disorder’[11] by reason of the mental impairment. In Willgoss v The Queen the trial Judge directed the jury:[12]
... now if he could not really reason about that matter with a moderate degree of composure it may be said he could not know that what he was doing was wrong.
[11] The King v Porter (1936) 55 CLR 182, 189.
[12] Willgoss v The Queen [1960] 105 CLR 295, 301.
On appeal to the High Court, Dixon J observed:[13]
Such a direction well may be called for in cases where the acts which but for insanity would form the crime charged are committed in a state of frenzy, uncontrolled emotion or suspended reason, the product of mental disease or disorder.
[13] The King v Porter (1936) 55 CLR 182, 189-90.
More recently in R v Jones[14] Sperling J viewed the test under the Crimes Act 1900 (NSW) as whether the accused, by reason of his mental illness lacked the capacity to reason calmly about the wrongfulness of his act.
[14] Regina v Jones [1996] NSWSC 124.
Evidence of Dr Raeside
Dr Raeside’s evidence as to whether the defendant understood the wrongfulness of her actions again shifts with the charge itself, and his later awareness of her intellectual disability. Dr Raeside draws attention to the defendant’s ability to think about answers she wants to give to people and her tendency to change an answer to promote her best interests. He says that often in a criminal case this is clear evidence that a person knows the wrongfulness of their actions. In the case of the defendant, he considers that her behaviour was driven by overarching issues of the pregnancy and her wish to keep this from her mother, which may have some broader application to her ability to understand the wrongfulness of her action. This evidence is in line with his original opinion of the defendant.
With respect to the charge in terms of an omission, Dr Raeside is of the view that the defendant did not give any thought to what she should have done, and was herself limited in her ability to reason through what action ought to be taken, due to her labouring under various ancillary pressures. He acknowledges the difficult task in evaluating whether the defendant was simply deprived of the ability to know the actions she should have taken, whether she gave it any thought at all, or whether she thought that what she did do was sufficient. He did note, however, that her use of psychological denial throughout the duration of the pregnancy is consistent with her not seeking the extra help for the baby following the birth.
Dr Raeside is of the view that the defendant was not so mentally impaired that she was unable to know things, such as the availability of help from her parents, but was impaired in her reasoning and thinking about what she should do. He attributes this to factors such as the fear of her mother finding out, the situation she found herself in with regards to her bleeding with a child, and the stresses associated with her general predicament. When asked about her capacity to know what options were available, Dr Raeside said:
When you say ‘the capacity’, again in my assessment I have, looking at her ability, her capacity at the time of the birth of the child, in the immediate aftermath, I certainly think that Ms Ey had the capacity and has the capacity to understand, if appropriately educated and other factors, as to what might ordinarily be the care and nurture that the child would require, albeit with some difficulty in learning those issues. But in this particular case, being suddenly confronted with, here it is, the birth of a child, being able to reason through what to do. So in other words, I believe that she had the knowledge of the nature and quality of the action or, sorry, she was able to know the nature and quality; her impairment was not so severe as to deprive her of that ability. But the second bit was her ability to reason with a modicum of a sense of composure about the wrongness of not immediately seeking some help, not immediately seeking some other action because cognitively and intellectually, she was stifled, if you like, and unable to think through that clearly.
Evidence of Dr Tomasic
Dr Tomasic considers the defendant to have a reasonable understanding as to the wrongfulness of her actions, demonstrated by her attempts to hide the baby, albeit in an unsophisticated way, as well as the various lies she told to her mother, the doctor and police as to having been pregnant and giving birth. She views these actions as an attempt by the defendant to protect herself.
Dr Tomasic is of the opinion that the defendant experienced dissociative symptoms, which is a common trait of hidden pregnancies or neonatacide, and an automatic response to reducing anxiety. Further, her memory loss on the night of the alleged offence may be attributed to these dissociative symptoms. She considers that the situation in which the defendant found herself would have no doubt been overwhelming and confusing, though she does not suggest that this dissociation would in any way impact on the defendant’s ability to know or control her actions. In her view, these dissociative symptoms in no way impact on the nature and quality or the wrongfulness of the act.
Dr Tomasic gave evidence that in her view the defendant has the capacity to know that a newborn baby needs help, though at the time of the birth and its aftermath, ongoing secrecy about the pregnancy was foremost in the defendant’s mind.
Conclusion:
I am satisfied that the defendant is able to understand in a general sense the difference between right and wrong. This is supported by the evidence of Dr Raeside:
I think she certainly is capable of telling the truth or telling untruths. She, in its general sense is able to know right from wrong. She understands that she can get into trouble for things she does wrong or other people think she has done wrong. Given her intellectual disability, as with many people in that situation, they become quite aware when they are growing up to mask issues and try to present as best they can in order to avoid any negative consequence to them.
Further, I agree with Dr Raeside that at the point of putting the baby on the driveway the defendant was not so intellectually disabled that she was deprived of the ability to know the wrongfulness of her act.
The defendant did not reason calmly or logically about her act and omissions in placing the infant outside, depriving him of care and nurture. Central to the question, however, is whether her mind was so disordered as to hinder her ability to contemplate the moral wrongfulness of depriving the infant from care, judged by the standards of the reasonable person.
I am not satisfied that the defendant due to her mental impairment was unable to reason about the moral quality of her omissions. I accept the evidence of Dr Tomasic that the defendant had the capacity to know that it was wrong not to seek help after giving birth, but was overborne by her desire to uphold the secrecy of her pregnancy. I accept that the defendant is mentally impaired, and is of low intelligence, at times exhibiting a child-like naivety. I accept that the defendant would have found herself in an overwhelming situation with various pressures affecting her decision to place the infant outside. It does not follow, however, that at that moment she was disabled from knowing that it was a wrong act to commit in the sense that an ordinary person understands right from wrong, and that she was disabled from considering with some degree of composure and reason the wrongfulness of her actions.
The defendant was enrolled in ‘Certificate II in Community Services Work’. Within this program, the defendant successfully passed two units of competency, namely ‘Ensure Children’s Health and Safety’ and ‘Communicate with People accessing the Services of the Organisation’. I have had regard to the content of these courses. Further, the defendant has undertaken three to four weeks of employment on a traineeship with the ABC Learning Centre at Campbelltown. I am satisfied that the defendant would have understood that a newborn infant needed care and nurture.
I conclude that the defendant has not discharged the onus upon her to displace the presumption of mental competence. I therefore find that the defendant was mentally competent to commit the offence.