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R v MB (No. 2)

R v MB (No. 2)

Case [2014] NSWSC 1755 11 December 2014

Murder

Mental Health

Infanticide

Partial Defence of Substantial Impairment

Lies

Consciousness of Guilt

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v MB (No. 2) [2014] NSWSC 1755
Hearing dates: 24, 25, 26, 27 and 28 November; 1, 2, 4 and 5 December 2014
Decision date: 11 December 2014
Before: Bellew J
Decision:
On the limited evidence available, I find that the accused committed the offence charged, namely that on 18 November 2010, at North Strathfield in the State of NSW, she did murder OB.

Catchwords:
CRIMINAL LAW - murder - special hearing where accused found unfit to be tried - accused alleged to have murdered 6 month old daughter by deliberately drowning her - where accused held a belief that her daughter had a genetic abnormality - evidence of accused expressing a desire to rid herself of her daughter - evidence of absence of affection by the accused towards her daughter - evidence of lack of bonding between the accused and her daughter - evidence of expressions by the accused of resentment regarding the birth of her daughter - evidence of accused having accessed internet articles regarding death of infants, drowning and sudden cardiac death - Crown case circumstantial - where defence of mental illness not available - elements of murder established

CRIMINAL LAW - murder - infanticide - where evidence that accused had a disturbed mind as a consequence of prodromal symptoms of schizophrenia at the time of the commission of the offence - whether that disturbed mind was by reason of the accused not having fully recovered from the effect of giving birth to her daughter - where the expert evidence was that the accused's disturbed state was referable to a number of factors - onus of proof - infanticide negated

CRIMINAL LAW - murder - partial defence of substantial impairment - where impairment made out - where impairment not so substantial as to warrant liability for murder being reduced to manslaughter

EVIDENCE - Lies - Consciousness of guilt - Where accused gave conflicting accounts of events surrounding the death of her child - Where medical evidence supported a conclusion that provision of conflicting accounts was a manifestation of disturbed mind - Whether evidence should be regarded as lies exhibiting a consciousness of guilt
WORDS AND PHRASES - "effect of giving birth"
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Code Act 1974 (PNG)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Infanticide Ordinance 1953-1956 (PNG)
Cases Cited: Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410
Burrell v R [2009] NSWCCA 193
Doney v R [1990] HCA 51; (1990) 171 CLR 207
Edwards v R [1993] HCA 63; (1993) 178 CLR 193
Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22
Morgan v Attorney-General of the State of Queensland (1986) 24 A Crim R 342
R v Bilick and Starke (1984) 36 SASR 321; (1984) 11 A Crim R 452
R v Bretherton [2013] NSWSC 1036
R v Heyde (1990) 20 NSWLR 234
R v JMR (1991) 57 A Crim R 39

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v MB (No. 2)

Details

AGLC: R v MB (No. 2) [2014] NSWSC 1755
Case: [2014] NSWSC 1755
Decision Date: 11 December 2014

CaseChat Overview and Summary

In the case of R v MB (No. 2), the accused was charged with the murder of her six-month-old daughter. The case was heard in a court of criminal jurisdiction. The primary issue before the court was whether the accused could be held responsible for the murder, given evidence of her disturbed mental state and alleged infanticide. The court had to determine if the accused's mental state at the time of the offence negated the elements of murder or if the partial defence of substantial impairment applied.

The court considered the evidence of the accused's mental health, including her access to information about infant deaths and her expressions of resentment towards her daughter. The expert evidence suggested that the accused's disturbed state was due to a combination of factors, including the prodromal symptoms of schizophrenia and the effect of giving birth. However, the court concluded that the accused's disturbed mind was not solely due to the effect of giving birth. Additionally, the court had to evaluate whether the accused's conflicting accounts of the events surrounding her daughter's death constituted lies indicating a consciousness of guilt.

The court found that while the accused's mental state impaired her ability to form intent, it was not substantial enough to reduce her liability for murder to manslaughter. The court also determined that the accused's conflicting accounts did not necessarily indicate a consciousness of guilt but were consistent with a disturbed mind. The evidence established all elements of murder, and the defence of infanticide was not available.

The court ordered that the accused be detained for an indefinite period under the Mental Health Act, as she was found unfit to be tried. The court held that the accused was not guilty of murder but that her unfitness to be tried precluded the imposition of a sentence.

Orders