R v MB

[2016] NSWSC 985

Supreme Court

New South Wales

Medium Neutral Citation:	R v MB [2016] NSWSC 985
Hearing dates:	11 July 2016
Decision date:	11 July 2016
Jurisdiction:	Common Law
Before:	Mathews AJ
Decision:	I make the following orders: - 1.   That the accused, MB, is now fit to stand trial; 2.   That the matter be stood over to the next arraignments list on 5 August 2016; 3.   That bail be allowed in the meantime, on the following conditions: 4.   That the applicant be of good behaviour 5.   That she live at the Bunya Unit of Cumberland Hospital, 1/11 Hainsworth Street Westmead NSW 2145 6.   That she obey all reasonable directions given by her treating team at the Bunya Unit 7.   That she not approach any international point of departure 8.   That she not approach or contact any Crown witnesses with exception of any person who is directly related to her. 9.   Make a non-publication order in relation to the accused’s name.
Catchwords:	Mental Health Fitness Hearing – Accused now fit to stand trial
Legislation Cited:	Bail Act 2013 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	R v Presser [1958] VR 45
Category:	Principal judgment
Parties:	Crown - Director of Public Prosecutions Accused - MB
Representation:	Counsel: Crown – TW Thorpe Accused – P Lange   Solicitors: Crown - Office of the Director of Public Prosecutions Accused – Aquila Lawyers
File Number(s):	2011/149163
Publication restriction:	Non-publication order made in relation to the accused’s name

REASONS FOR ORDERS

Introduction

1. MATHEWS AJ: On 11 July 2016 a fitness hearing took place before me, pursuant to s 29(1)(b) of the Mental Health (Forensic Provisions) Act, 1990 (“the Act”). It was a very short hearing, as both the Crown and the defence were in agreement as to the appropriate orders to be made. Having read the relevant documents, I agreed that these orders were appropriate in all the circumstances. Accordingly, by consent, I made the following orders:

1.   That the accused, MB, is now fit to stand trial;

2.   That the matter be stood over to the next arraignments list on 5 August 2016;

3.   That bail be allowed in the meantime, on the following conditions:

4.   That the applicant be of good behaviour

5.   That she live at the Bunya Unit of Cumberland Hospital, 1/11 Hainsworth Street Westmead NSW 2145

6.   That she obey all reasonable directions given by her treating team at the Bunya Unit

7.   That she not approach any international point of departure

8.   That she not approach or contact any Crown witnesses with exception of any person who is directly related to her.

9.   I also made a non-publication order in relation to the accused’s name, and said that I would publish my reasons later.

2. These, then, are my reasons for making the above orders.

Background

3. The matter has a lengthy history, which I shall describe very briefly. Ms B has been charged with the murder of her six-month old daughter, O, who drowned in her bath on 18 November 2010. The accused had been obsessed with the belief that O was suffering a genetic defect which would significantly impede her normal development. She refused to accept medical assurances that her daughter was normal.

4. Later on the date of O’s death the accused was admitted to the mental health section of Concord Hospital, where she remained until 30 December 2010. On 6 May 2011 she was arrested and charged with O’s murder Thereafter she had a number of admissions to psychiatric institutions. On 6 February 2014, following a fitness hearing, Barr J found the accused unfit to be tried. Pursuant to s 19 of the Act a special hearing was then conducted before Bellew J. On 11 December 2014 his Honour found, on the limited evidence available, that the accused had committed the offence of murder. On 19 December 2014 he imposed a limiting term of imprisonment of 20 years from 11 December 2014.

5. On 26 March 2015 the Mental Health Review Tribunal (“the Tribunal”) conducted a hearing into the accused’s fitness to be tried, and on 14 April determined that the accused was unfit to be tried for the offence of murder. A further hearing took place on 10 September 2015, by which time the accused’s condition had significantly improved. On 18 December 2015 the Tribunal determined that the accused was fit to be tried. (I will be referring to this determination in more detail shortly, as it was this which gave rise to the fitness hearing before me). In the meantime, on 9 November 2015, the accused was moved to the Bunya Unit at Cumberland Hospital. On 15 March 2016, following a further hearing on 5 February 2016, the Tribunal ordered, pursuant to s 49 of the Act, that she be allowed supervised day leave.

6. Section 29 of the Act requires the Court to hold a further inquiry after the Tribunal has determined that a person has become fit to be tried. This was the inquiry heard by myself.

7. A number of psychiatric reports were tendered at the hearing, all of them by consent. These show that the accused’s mental condition has to some extent fluctuated over the years. However with appropriate medication she has now reached the stage where all experts agree that she is currently fit to be tried.

8. Section 11 of the Act requires that the judge, in determining a person’s fitness to stand trial, is to include the findings of fact which were made and the principles of law which were applied. It is therefore appropriate at this stage to refer to the criteria to be applied in making this determination.

The Presser Criteria

9. It has long been established that if an issue arises as to an accused’s person’s fitness to stand trial, it is to be adjudicated upon the basis of the person’s capacity to meet the criteria set out in R v Presser [1958] VR 45. To briefly summarise these criteria, they require that, in order to be fit to stand trial, a person needs to be able to:

• Understand the charge against him or her,

• Plead to the charge and exercise his/her right of challenge,

• Understand generally the nature of the proceedings,

• Follow the course of the proceedings, and understand the effect of the evidence given against him/her,

• Make his/her defence or answer to the charge,

• Instruct counsel as to his/her version of events,

• Decide what defence he/she will rely upon.

10. Before determining whether the accused currently meets these criteria, it is necessary to recount of little of the history of the matter, which also involves discussing some of the psychiatric reports which have been given over the years since the death of OB.

The Accused’s Psychiatric History

11. Given the lengthy history of this matter, the accused has been examined on numerous occasions by various psychiatrists, giving rise to a significant number of reports. I propose to be selective in those that I refer to, particularly the earlier ones in point of time.

12. The one specialist who has seen the accused over a lengthy period of time (more than three years) is the eminent forensic psychiatrist, Professor David Greenberg. I will therefore be concentrating primarily on his reports.

13. Professor Greenberg’s first report, dated 18 May 2013, followed lengthy meetings with the accused on 4 and 5 April 2013. He obtained a detailed history of the accused’s background, and her six psychiatric admissions between October 2010 and September 2012. The last of these was between August and September 2012, three months after she had ceased taking her anti-psychotic medication. She was diagnosed at the time as having a schizophrenic type illness with narcissistic and perfectionistic paranoid traits. Professor Greenberg concluded that the accused was suffering from a major psychiatric illness, namely a schizophrenic disorder. He had not been asked to assess her fitness to stand trial, so did not address her ability to meet the Presser criteria.

14. Professor Greenberg’s next report, dated 10 July, was pursuant to a request that he provide further advice about the accused’s mental state at the time of the death of her daughter. Accordingly it focussed entirely on her condition at that time, and contained no matters of relevance here.

15. On 1 February 2014 Professor Greenberg wrote a further report, based on an interview he had had with the accused the same day. This time he had been asked to comment on the accused’s fitness to stand trial. The professor reported that, although the accused understood some of the court processes, there were various aspects in which she failed to meet the Presser criteria. Accordingly he concluded that she was unfit to stand trial. This report was clearly taken into account when Barr J found, on 6 February 2014, that the accused was unfit to stand trial.

16. As already indicated, on 14 April 2015 the Tribunal determined that the accused remained unfit to stand trial. However over the ensuing months she was treated with antipsychotic medication at the Forensic Hospital, and later at the Bunya Unit of the Cumberland Hospital, as a result of which there was a significant resolution of her symptoms. Accordingly, on 18 December 2015 the Tribunal determined that she then met the Presser criteria, and was fit to stand trial. In doing so, the Tribunal took into account the report of Dr Daniel Riordan dated 10 November 2010. It had also heard evidence from Dr Anna Farrar of the Bunya Unit.

17. It was as a result of this determination that, pursuant to s 29 of the Act, the fitness hearing took place before me. In the meantime, on 15 March 2016, the Tribunal issued a further decision, allowing the accused supervised day leave from the Cumberland Hospital. In its reasons, the Tribunal referred to the opinions of the psychiatrist Dr John Basson. He had expressed the opinion that, at that point, the accused remained fit to be tried.

The Fitness Hearing

18. At the fitness hearing before me the Crown tendered, by consent, a bundle of documents consisting of: the four reports of Professor Greenberg dated between 18 May 2013 and 27 June 2016; the decisions and reasons of the Tribunal made on 18 December 2015 and 15 March 2016, together with the report of Dr Maharaj and Dr Kavanagh dated 22 April 2014 and the report of Dr Daniel Riordan dated 10 November 2015. The defence, again by consent, tendered the report of Patrick Sheehan, forensic psychologist, dated 29 June 2016. No oral evidence was given.

19. It is appropriate here to refer to the two most recent expert reports, for it was on the basis of these reports that both parties were in agreement as to the appropriate outcome of these proceedings.

20. Professor Greenberg’s report, dated 27 June 2016, followed an assessment of the accused the previous day at the Bunya Unit, as well as one the previous December. He considered that she then met each of the Presser criteria, and was therefore fit to stand trial. He expressed the opinion that, provided she continue taking her prescribed psychiatric medication and continue with the psychiatric treatment program provided by her mental health team at the Bunya Forensic Unit, she would be likely to remain fit during the course of her trial.

21. Mr Sheehan’s report, dated 29 June 2016, followed an interview with the accused on 27 June. Mr Sheehan had also been provided with all relevant material relating to the history of the matter as well as many of the earlier psychiatric reports. He found that the accused was responding well to her treatment at the Bunya Centre, where she was spending part of her time working in the library, which she enjoyed very much. Mr Sheehan discussed the court proceedings with her, and on the basis of her answers concluded that she was able to meet each of the Presser criteria.

22. It follows that all the expert evidence is pointing in one direction only, namely that the accused is currently fit to stand trial. It is for this reason that I made the first two orders referred to above, namely that she is now fit to stand trial, and that the matter be stood over to the next arraignment list on 5 August 2016.

23. The third order I made, namely that the accused be allowed conditional bail, arose from the following situation. On all accounts, the accused’s condition has improved markedly since her admission to the Bunya Unit at the Cumberland Hospital. All experts agree that she should, if at all possible, remain in the unit and continue her present medical regime. However once the Court makes a finding of fitness then she ceases to be a forensic patient, and is no longer entitled to remain in the unit. I have to say that I was very surprised to hear this. It potentially gives rise to a serious vicious circle. The one solution in the present case, which both the Crown and the defence agree upon, is that the accused be granted bail on condition that she remain in the Bunya Unit as a voluntary patient. Dr John Basson, of the Bunya Unit, says that she would be accepted into the unit as a voluntary patient. However, as the Crown pointed out, murder is a “show cause” offence under s 16A of the Bail Act 2013, meaning that bail must be refused unless the accused shows cause why her detention is not justified. It is also necessary to consider the various matters referred to in s 18 of the Bail Act, as well as whether, pursuant to s 19, her release would impose an unacceptable risk as to the various matters referred to therein.

24. Given that the Crown agrees in this case that bail should be granted, I do not propose to go through the detailed matters provided in the sections of the Bail Act to which I have referred, except to say the following. First, pursuant to s 16A, the accused has shown cause why her continued detention is not justified, namely that it would prevent her from continuing on her current mental health regime; secondly the accused does not pose an unacceptable risk under s 19. Accordingly, all necessary conditions having been met for the granting of bail, I made the additional orders referred to above.

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Decision last updated: 15 July 2016