R .v. GIFFORD

[2002] NSWSC 498

CITATION:	R .v. GIFFORD [2002] NSWSC 498
FILE NUMBER(S):	SC 70002/02
HEARING DATE(S):	3 June 2002
JUDGMENT DATE:	4 June 2002
PARTIES :	Regina Christine Ann GIFFORD
JUDGMENT OF:	Barr J at 1

COUNSEL :	Mr S.C. de Silva for the Crown Mr C.J. Bruce for the Accused
SOLICITORS:	S.E. O'Connor for the Crown James Fuggle, Solicitors for the Accused
CATCHWORDS:	Criminal Law - Accused found not guilty on the ground of mental illness
LEGISLATION CITED:	Mental Health Act 1990
DECISION:	See Judgment at Paragraph 40

IN THE SUPREME COURT REVISED
OF NEW SOUTH WALES
COMMON LAW DIVISION

Graham Barr J

Tuesday 4 June 2002

70002/02 Regina .v. Christine Ann GIFFORD

JUDGMENT

1 HIS HONOUR: Christine Ann Gifford has pleaded not guilty to the charge that on 18 July 2000 at Drake New South Wales she murdered Megan Rose Gifford. She has elected for trial by judge alone and the Crown has consented to that form of trial. I shall explain when I review the psychiatric evidence why I think it appropriate that the accused should be tried without a jury.

2 The deceased child, Megan Rose Gifford, was killed by ligature strangulation on 18 July 2000. The accused, who was the mother of the child, does not remember the circumstances of her death and that has had consequences. First, she has not given evidence. I draw no inference against the accused from her decision not to give evidence, which is explained by her amnesia alone. Her silence may not be used to fill in any gap in the Crown case, which is a circumstantial one. A second consequence is that the accused has not challenged any of the evidence on which the Crown relies. It has therefore been possible for the Crown to present its case by the tender of the written statements of its witnesses.

3 The evidence proves beyond reasonable doubt that the accused did the act which caused the death of the child. Counsel for the accused, Mr Bruce, impliedly accepts that that is so. Although he has made no formal admission or concession on behalf of the accused, he has not made any submission to challenge the conclusion that the accused did the act causing death. The substantial issue raised by the accused’s plea of not guilty is whether, assuming that she did the act causing death, she was mentally ill and therefore not legally responsible for her actions. She must prove that it is more likely than not that that was so.

4 The accused and the father of the child separated when the child was about two years of age. By early 2000 the accused and the child were living in Cairns, North Queensland. The accused was very friendly with Mrs Elizabeth Kinneir-Tarte, who lived not far from the village of Drake in northern New South Wales. During June the accused and the child were living on the property of the accused’s friend Mr Phillip Dugon, in Long Gully Road, Drake. Mrs Kinneir-Tarte and her husband lived not far away. The accused and the child often visited Mrs Kinneir-Tarte, who was like a mother to the accused. They left her premises together on the evening of 15 July 2000. On the following Monday, 17 July, the accused called at Mrs Kinneir-Tarte’s house and said that she and the child were leaving for Warwick where the child was due to resume school. Later that afternoon someone from the school telephoned Mrs Kinneir-Tarte, saying that the accused had just spoken to her by telephone saying that there were family problems and that the child would be late back at school.

5 Mr Dugon left for work at 4:30am on Tuesday 18 July. The child was then alive and in the company of the accused.

6 During the same morning Mrs Kinneir-Tarte telephoned the house where the accused and her friend were living but was unable to speak to the accused. She managed to leave a message for her, however, and later spoke to her face-to-face. She remonstrated with her for not having returned the child to school and asked where she was. All the accused would say was that the child was not there. Knowing that the accused had had no contact with her family for many years, Mrs Kinneir-Tarte asked what the family problems were that she had told the school about. The accused said that it was about her brother but refused to say more. She said that her brother had the child. Mrs Kinneir-Tarte left, upset. During the same afternoon the accused telephoned her and said that the child was well.

7 At about midday the accused asked permission of neighbours to borrow their utility truck, as she said, to take rubbish to the tip. They declined to lend her the vehicle but offered to drive her and collect and dispose of the rubbish. When they went to Mr Dugon’s house they saw only bags of clothes. There was no rubbish which would warrant the need for a vehicle of the kind the accused was wanting.

8 The accused told Mr Dugon that her brother had come from Queensland to collect the child and had taken her to Brisbane to live with him and his family, following arrangements that had been made a long time ago. Mr Dugon spoke to Mrs Kinneir-Tarte and they compared the versions the accused had told them. They suspected that something was amiss.

9 On Wednesday 19 July the accused requested Mr Dugon to take her to Lifeline in Lismore for crisis counselling. When he arrived at his house to collect the accused he noticed a sheet on the line. The bed was disturbed. There were bags of what looked like clothing. The accused told him that the child had wet the bed during the night, something the child would not ordinarily do. She told Mr Dugon that the bags contained clothing which the child had outgrown. Mr Dugon was suspicious as the only property belonging to the child at the house comprised school requisites which she ought to have taken with her to school. Mr Dugon took the accused to Lifeline and on the way the accused told him that she wanted to dispose of the child’s old clothes. He became even more concerned when he realised that the clothes in the bags were not old.

10 Mr Dugon told the counsellors about his concerns and the accused was asked where the child was. She repeated to the counsellors that she was at the accused’s brother’s house in Brisbane. She was unable to put the counsellors in touch with her brother, however. The counsellors called the police and the accused repeated to the police that the child was with her brother. The police contacted the brother and he told them that he had not seen the child for several years.

11 The search was begun for the child and her body was found about one hundred metres from Mr Dugon’s house. She had been strangled by a length of rope, which was wound tightly around her neck. Police found the rope and a bloodstained sloppy joe in a bag containing the accused’s property. The sloppy joe belonged to the accused. The rope was examined and DNA taken from it. It matched DNA taken from the accused but not DNA taken from the child. Blood on the sloppy joe could have come from the child but not from the accused. A small bloodstain, which could have come from the child, was found on a sheet. There was blood around the nose and right eye of the body of the child. There were bloodstains on the sleeves of the pyjamas she was wearing.

12 The evidence I have summarised makes for a strong circumstantial case. The child was last seen alive at 4:30am on 18 July in the company of the accused. The objective signs show that the child was killed at Mr Dugon’s house. The time of death was estimated as being between 4:30am and 11:30am on 18 July 2000. The only other occupant of the house, Mr Dugon, was absent during those hours. The accused asked to borrow a utility truck for which she had apparently no use if she were not intending to use it to transport the body of the child. She attempted to dispose of the child’s clothing and school items. She attempted to dispose of her own sloppy joe which bore blood which may have been the child’s. She washed the bed-sheet and gave what was probably a false explanation for the need to do so. When asked where the child was she gave a false explanation.

13 I am satisfied beyond reasonable doubt on this evidence that on the morning of 18 July 2000 the accused strangled the child, intending as she did so to kill her.

14 The statement of the test for a defence of mental illness was propounded as long ago as 1843 in R v McNaghten. The question to be answered was whether the accused at the time the offence was committed was suffering from a defect of reason, from a disease of the mind, so as not to know the quality and nature of the act she was doing or, if she did know it, that she did not know that what she was doing was wrong. The law has been amplified in Australia during the last one hundred years and the test may be said to be whether the accused was able to appreciate the wrongness of the act that she was doing. If through disordered condition of the mind she could not reason about the matter with a moderate degree of sense and composure it may be said that she could not know that what she was doing was wrong. It may also be said that if a disease of the mind so governs the faculties that it is impossible to reason with some moderate degree of calmness about the moral quality of an act, the actor is prevented from knowing that what she does is wrong.

15 The accused is thirty-two years of age. She has enjoyed good physical health throughout her life though at fifteen she developed a hernia which was successfully repaired by operation and at sixteen contracted Ross River fever which affected her badly. There is a family history of psychiatric disorder. The accused’s first hospital admission for psychiatric purposes was to the Cairns District hospital in September 1999. However, her symptoms had begun in 1995 or 1996. At that time she became afraid of the Devil and of evil demons and played a lot of Christian music on tapes apparently in an attempt to protect herself. Concerns of that kind continued until her admission in 1999 and beyond. Her first symptoms included thinking on a couple of occasions that the child was possessed by the Devil. She noticed that her eyes changed from brown to black. That sometimes happened with other people as well. The accused had a sense that she had been given a special gift or power to connect with God and for a while she thought that she was God on earth. She experienced auditory hallucinations in the form of whispers and occasionally words. She thought that they were from angels because they were gentle and quiet. She felt very proud because she had been chosen to be someone special. Her only fear was of demons and devils and of people watching her. Motor vehicle number plates took on special meanings which she could interpret.

16 In 1998 and 1999 the good feelings had all disappeared. She was concerned about bikies and members of the Secret Service. In 1998 she attended a party at the home of one of her work superiors and noticed that the walls in one of the rooms were covered in press cuttings about people who had been murdered or dismembered. It seems likely that that actually happened. She told a police officer that drugs had been distributed at the party.

17 Symptoms of that kind were present when she was admitted to the Cairns District hospital in September 1999. Her admission was precipitated by fears about pesticide spray. She had seen a vehicle from a pest control company that looked as though it had been spraying. She thought that someone must have thought it a good way to get rid of her. On her admission she discussed these and other symptoms. She said that often when someone walked towards her they looked familiar but when they were closer they turned out to be strangers. She would see “ghosts” over their face. She also saw ghosts by themselves. She thought that ghosts could look at her through strangers. She thought that the internal energy of angels could be transported into strangers. She had feelings and beliefs about soul transfer, the soul moving from one person to another. In 1995 or 1996 she had felt that her soul had gone across the road into an American person and had been transported overseas. She was still fearful of bikie gangs and the Secret Service.

18 In February 2000 she was admitted again to Cairns hospital. Her landlady noticed that she was acting strangely and took her there. The accused thought that she could see people in the house. She had had an experience at the airport, believing that the child had been taken away by someone who was looking after her. She believed that she could see guards in the garden watching her closely. There were vans equipped with technical devices and cameras.

19 Each time she was admitted to hospital she was treated and discharged with medication. On each occasion she stopped taking the medication.

20 The history which I have summarised is taken from the report of Dr William Lucas, one of the three psychiatrists who has seen the accused and has provided a report for the Court.

21 Dr Lucas is of the opinion that at the time of her admissions to Cairns hospital the accused was suffering from a psychotic episode with affective features, or schizo-affective disorder. He thinks that the description of her presentation is consistent with a psychotic disorder with marked disturbance of thought, incongruent affect, active auditory hallucinations and some grandiosity. He noted that for much of the admission she was grossly thought disordered and “almost delusional”. She did not disclose to any extent her delusional beliefs, however, which were present but accompanied by great fear. Although there was improvement on medication her insight remained poor.

22 After the accused’s arrest she was taken to Richmond Clinic in Lismore on 20 July 2000. The description of her condition there is consistent in Dr Lucas’ opinion with a severe psychosis with wide-ranging symptoms including visual, auditory and somatic hallucinations. Dr Lucas observes that partial, and occasionally total, amnesia for violent events is common to those who commit them and that important factors influencing amnesia include depression and psychosis. He thinks that the accused’s psychosis was of a severe degree and appears to accept her claim of amnesia.

23 Dr Lucas thinks that when she killed the child the accused was suffering from paranoid schizophrenia, which is a disease of the mind. He thinks that she was probably aware of the nature and quality of her act but, because of her mental illness, unable to reason about its rightness or wrongness with a moderate degree of sense and composure. Due to an elaborate delusional system and auditory and visual hallucinations she had long feared for the safety of herself and her daughter. In the circumstances she could not have reasoned about the wrongness of her act with any degree of sense and composure. In Dr Lucas’ opinion the defence of mental illness is available to the accused.

24 The psychiatrist who has seen most of the accused since her arrest is Dr Giuffrida. He has been treating her at Mulawa Correctional Centre Silverwater, where she has been held since July 2000. Dr Giuffrida notes that on her admission to hospital at Lismore after her arrest the accused was seen by Dr O’Dea, psychiatrist who diagnosed a schizophrenic episode and began treating her with anti-psychotic medication. Dr Giuffrida has made an extensive review of the medical records of the accused. He notes that she told Dr O’Dea that recent events were a blur and that she could not accept that her daughter was dead. She spoke of hearing voices and said that she had often heard her thoughts spoken aloud.

25 When he examined her on 1 August 2000 Dr Giuffrida found the accused vague and perplexed and apparently having no recollection of the events surrounding the child’s death. She believed that the child was still at boarding school and that she would see her soon. She described auditory hallucinations and delusional ideas of persecution. The fears were of the kind described by Dr Lucas.

26 On the basis of his finding of thought disorder, auditory and possibly visual hallucinations and delusions, Dr Giuffrida diagnosed schizophrenia. The accused demonstrated what Dr Giuffrida referred to as first rank symptoms of schizophrenia, for example the belief that people could hear her thoughts and the experience of hearing her own thoughts spoken aloud. Dr Giuffrida continued to see the accused. She was transferred to Cumberland hospital on 28 August 2000 and has remained there since.

27 Like Dr Lucas, Dr Giuffrida reviewed in detail the admissions to Cairns hospital. He noted that for about twelve months up to April 1999 the accused was working for a mobile telephone company, selling contracts, and developed the delusional ideas that the phone service was evil and emitting dangerous radiations that were affecting her brain. She believed that the radio waves could read her thoughts and that people that owned or operated the mobile phones were reading her thoughts and that it was all somehow related to the Devil.

28 Dr Giuffrida has reviewed the movements of the accused from one place of living to another, motivated to a large degree by delusional fear, but there is no need to deal here with the details. Dr Giuffrida also believes that the accused has suffered from increasingly intense and disruptive delusional ideas since 1995 and that the delusions appear to have arisen because she made certain disclosures to the police about persons she thought were drug dealers. From that she developed the paranoid persecutory delusion that people she had so identified were trying to avenge themselves upon her. She developed a belief that such people would kidnap the child, cut off parts of her and send them in the mail. He thought that the accused’s description of the change of colour of people’s eyes may have been a form of visual hallucination but that it was more likely that they were a delusion of perception. He thought that the experience of swapping souls with other people was clearly delusional.

29 Dr Giuffrida is of the opinion that if it is found that the accused caused the death of the child, a defect of reasoning based on two kinds of delusional beliefs caused her inability to appreciate the wrongness of the act. The first was her solidly entrenched delusional conviction that her daughter’s life was at great risk. The second, namely that she had swapped souls with the child, signified to her that the child was possessed by the Devil and would do her harm. He observed that delusions of those kinds are of the most common kind occurring in psychotic women suffering from diseases such as schizophrenia who take the life of their children. He is of the opinion that the defence of mental illness is available to the accused.

30 Dr Neilssen, psychiatrist, has interviewed the accused on behalf of the Crown and has reviewed the medical and other records. He diagnoses chronic schizophrenia. He thinks that at the time of the death of the child the accused was suffering from a defect of reason in the form of bizarre persecutory beliefs that were typical of acute schizophrenia. He noted that there were many cases in which the delusional belief that a loved one has become possessed by the Devil has resulted in pre-emptive assaults and even homicides.

31 He is of the view that the severe disturbance of logical and reasoning ability arising from acute mental illness probably deprived the accused of her ability to understand that her actions were morally wrong.

32 The opinions of the three psychiatrists well establish that when she killed the child the accused did not, because of her mental illness, appreciate that what she was doing was wrong. Accordingly she must be found not guilty on the ground of mental illness.

33 Since being held in custody the accused has been treated. Dr Giuffrida has been concerned to ensure that she is now fit to be tried and is satisfied that she is fit. Although she has no previous experience with the Court, she has demonstrated to Dr Giuffrida that she understands the role of all the participants in the legal process and the significance of a plea of guilty or not guilty. I do not mention these matters in order to deal with any question whether the accused is fit to be tried, for no such question is raised. However, these remarks and opinions of Dr Giuffrida do demonstrate that the accused was well able to understand the issues concerned and to elect in an informed way for trial by judge alone.

34 The statute which governs cases like this requires me to make an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. In practice that will mean that the accused will be referred to the Mental Health Review Tribunal under the provisions of the Mental Health Act 1990. A strict statutory regime will then come into effect.

35 The Mental Health Review Tribunal is a body of professional experts. Within 14 days after the verdict the Tribunal will commence a review of the case of the accused. When it has done its review the Tribunal will make a recommendation to the Minister for Health. That recommendation may be either unconditional or subject to conditions as to the manner in which the accused should be detained, cared for or treated. If the Tribunal is satisfied that the safety of the accused or any member of the public would not be seriously endangered by her release, it may make a recommendation as to her release. If it makes such a recommendation that will be considered by the Department of Health which in turn will advise the Governor-in-Council. The Governor-in-Council will then, in accordance with the recommendation and advice, either make an order for the detention of the accused or for her release, conditional or unconditional. The Governor-in-Council may only make an order for release where the Tribunal itself has recommended release. Assuming that no recommendation for release is made after the first hearing the Mental Health Review Tribunal can at any later time, and must at least once every six months, review the case of the accused.

36 After hearing the evidence at any later review, it must make a recommendation to the Minister for Health as to the continued detention, care or treatment of the accused or as to her release, conditional or unconditional. The Tribunal is not free at any such review to make a recommendation for release unless it is satisfied that the safety of the accused or any member of the public would not be seriously endangered by her release. Again following such a review and recommendation the matter goes to the Department of Health and the Minister advises the Governor-in-Council. Any recommendation so advised can be carried into effect only by order of the Governor-in-Council.

37 If the accused were at any time released back into the public on conditions and there were a breach of any of those conditions, the Governor-in-Council might order that the accused be apprehended and detained. Such an order would follow by reason of the practical consideration that if a person were released, the Department of Health would maintain a watch over her case with the assistance of a Community Health Centre, a private psychiatrist, or one of the other public facilities available. In other words, if a person is released conditionally back into the community, then the Department maintains a watch over her and a breach of any condition will lead to her being apprehended and detained once again.

38 The conditions which could be applied include matters such as living in a particular place, taking particular medication and so on, to ensure that the accused was properly cared for. Other than pursuant to any such release, the accused would remain, as I have said previously, in strict custody within one of the psychiatric institutions catering for forensic patients.

39 The only manner in which a person ceases to be a forensic patient for the purposes of these provisions is by unconditional release by the Governor-in-Council, or release upon conditions which include a condition as to the time that the release should become unconditional. If that time expires, then the release becomes unconditional and the accused ceases to be a forensic patient. However, as I previously explained, the accused will never be released unless the Mental Health Review Tribunal is satisfied on the evidence available to it that her safety and the safety of any member of the public will not thereby be seriously endangered.

40 I find that the accused is not guilty of the charge by reason of mental illness. I order that she be detained at the Bunya Unit at Cumberland Hospital or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.

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Last Modified: 06/11/2002