R v MB (No. 2)
[2014] NSWSC 1755
•11 December 2014
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
R v Lane [2011] NSWCCA 157; (2011) 221 A Crim R 309
R v Lodhi [2006] NSWSC 672
R v MB (NSWSC, 6 February 2014 unreported)
R v Micaleff [2002] NSWCCA 480; (2002)
136 A Crim R 127
R v Ray (2003) 57 NSWLR 616
R v Sutton (1986) 5 NSWLR 697
R v Trotter (1993) 35 NSWLR 428
R v Yihwai and Aku [1963] PNGLR 40
Saffron v Director of Public Prosecutions; Allen v Director of Public Prosecutions (1989) 16 NSWLR 397
Vickers v R (1975) 61 Cr App R 48
Zoneff v R [2000] HCA 28; (2000) 200 CLR 234Texts Cited: Nil Category: Principal judgment Parties: Regina - Crown
MB - AccusedRepresentation: Counsel:
Ms N Noman SC - Crown
Mr R Webb - Accused
Solicitors:
Director of Public Prosecutions (NSW) - Crown
Nyman Gibson Stewart - Accused
File Number(s): 2011/149163 Publication restriction: Nil
Judgment
INTRODUCTION
On 24 November 2014 MB ("the accused") pleaded not guilty to an indictment alleging that on 18 November 2010, at North Strathfield in the State of NSW, she murdered her daughter (to whom I shall refer as OB) who was then aged 6 months.
On 6 February 2014 Barr AJ found the accused unfit to be tried: R v MB (NSWSC 6 February 2012, unreported). On 10 July 2014 the Mental Health Review Tribunal determined, for the purposes of s. 16 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"), that the accused did not meet the criteria for fitness to be tried and that on the balance of probabilities that situation would continue, and the accused would not become fit during the 12 month period following the finding of unfitness.
In these circumstances, the matter has come before me as a special hearing pursuant to s. 19 of the Act which is in the following terms:
19 Court to hold special hearing after advice received from Director of Public Prosecutions
(1) If the Court receives a notification of a determination from the Tribunal under section 16 (3), 45 (3) or 47 (5) that a person will not, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Court:
(a) is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and
(b) is to conduct a special hearing as soon as practicable unless the Director of Public Prosecutions advises that no further proceedings will be taken.
(2) A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.
(3) If the Director of Public Prosecutions advises the Court under subsection (1) (a) that no further proceedings will be taken in respect of the offence, the Director of Public Prosecutions is also to give that advice to the Minister for Police.
(4) Subsection (1) does not apply if the Court has already held a special hearing in relation to the offence concerned.
Pursuant to s. 21A of the Act a special hearing is to be conducted by a judge alone unless an election is made by either the Crown or the accused that there be a jury. No such election was made by either party in the present case.
Pursuant to s. 22(1) of the Act the following verdicts are available to be returned:
(i) that the accused is not guilty of the offence charged;
(ii) that the accused is not guilty on the grounds of mental illness;
(iii) that on the limited evidence available the accused committed the offence charged; and
(iv) that on the limited evidence available the accused committed an offence available as an alternative to the offence charged.
As to (iv) above, manslaughter is an available verdict given that the accused has been indicted for the offence of murder.
AN OVERVIEW OF THE CROWN CASE
OB was born on 21 April 2010 to the accused and her husband (to whom I shall refer as "RB"). On 24 June 2010 OB was examined by Dr Con James, Consultant Paediatrician. The accused had previously expressed concern about the presence of small skin tags near OB's ears, and Dr James arranged for a renal and bladder ultrasound to be performed in order to exclude any abnormalities. During the consultation, Dr James also raised the question of OB having proximal limb shortening, a possible indicator of a condition known as achondroplasia, commonly referred to as "dwarfism". Dr James informed the accused that although he did not believe that OB was suffering from that condition, he considered it appropriate that an x-ray be conducted to exclude it.
The accused and OB returned to see Dr James on 7 July 2010, at which time Dr James reassured the accused that both the ultrasound and x-ray were normal. He suggested a follow up appointment in several months.
Despite Dr James' reassurances, the accused displayed continuing anxiety about OB. She commenced researching achondroplasia (and related conditions) on the internet, from which she apparently learned that x-rays may not be conclusive in terms of excluding the condition. As a result of a follow up appointment with Dr James, a skeletal survey was arranged to further investigate the possibility of proximal limb shortening. At that time there was also some discussion about OB having a flat nasal bridge and frontal bossing (or in other words, a protruding forehead).
The skeletal survey demonstrated no abnormality. Despite this, the accused remained highly anxious, apparently unconvinced that OB had no deformity. Dr James became concerned about the accused's mental health and its effect upon her ability to bond with OB. As a consequence, he referred the accused to Dr Anne Turner, the Head of Medical Genetics at the Sydney Children's Hospital. Dr Turner also concluded that there was no evidence of any abnormality. The accused was not accepting of that opinion and continued to express concern about the possibility of OB having a genetic disorder. Dr Turner arranged for further testing and the accused was referred to Dr Betts, psychologist, and Dr Rickard-Bell, psychiatrist.
At subsequent consultations, Dr James again expressed the view that OB was a normal, healthy baby. Again, the accused was not accepting of his opinion. She was admitted to hospital on the evening of 19 October 2010 because she felt the need to undertake psychiatric treatment. Having stayed one night in hospital she expressed the wish to go home and because she was a voluntary patient she was permitted to leave. On 26 October 2010 the final testing conducted on OB was reported as normal.
During the period leading up to OB's death the accused was in contact with a number of her friends. In the course of conversations with them, she expressed concerns about OB being less than "perfect", and about losing her husband because of the failure to give him "a perfect child". She also made references to the prospect of jumping off a cliff with OB, and throwing her in the bin, and expressed a feeling that dealing with a long term illness was preferable to having to "deal with a dwarf".
At 12:10pm on 18 November 2010 the accused called 000. In a conversation extending over 10 minutes and 53 seconds, she told the operator that OB was in the bath and that she had "left her in there just to get the shampoo and she fell out of the seat". Upon enquiry, the accused told the operator that OB was under water. The operator repeatedly asked the accused to retrieve OB, or let the water out of the bath. The accused stated that she could not do either. When ambulance officers arrived at approximately 12:16pm they found OB floating in the bath, exhibiting no signs of life. She was not able to be revived. A crime scene was established at the accused's home. Amongst the items retrieved from the bath was a purple seat referred to as a "Bumbo seat", which carried with it a warning that it should not be used in water.
The accused was admitted to hospital on the evening of 18 November 2010. At the hospital, she told her husband that what had happened was an accident, and that she had left OB in the chair to retrieve a jump suit. When speaking to police, the accused said that her mobile telephone had rung, she had taken OB out of the bath, and had then put her back in the bath and left her there to retrieve a face towel. She said that when she came back OB was already in the water. Later that evening, when providing a history to a nurse, the accused said that she had fed OB and bathed her to clean her up. She said that she had placed her in the bath chair and had left her there whilst she went to get a face flannel, and that when she returned OB was face down in the water.
Post mortem examination of OB determined that the cause of her death was consistent with drowning. Injuries, the appearance of which was consistent with having been inflicted by something sharp such as a fingernail, were observed to be present on OB's head.
As part of the investigation of OB's death, police installed listening devices in the accused's home, along with the home of her mother (to whom I will refer as SG). In the course of recorded conversations, the accused indicated (inter alia) that she had never bonded with OB due to the ongoing medical tests which were being undertaken, and that she wished she had never given birth to her.
The accused was arrested and charged with OB's murder on 6 May 2011. She has been on bail since that time. It is the Crown case that she killed OB, either by intentionally drowning her in the bathtub intending to kill her or inflict grievous bodily harm upon her, or by leaving her in the bathtub for a sufficient period of time to allow her to fall forward into the water, and thereafter failing to remove her from that vulnerable position. In the alternative, the Crown relies on manslaughter by way of gross criminal negligence. An issue of infanticide is raised on the evidence, as is the partial defence of substantial impairment.
THE EVIDENCE
The birth of OB
Dr Morris was the accused's treating gynaecologist and obstetrician between 2009 and 2010. The accused first consulted him on 27 April 2009. She had learned on 26 February 2009 that she was pregnant but that pregnancy miscarried at 7 weeks gestation (Ex D p. 48).
The accused then fell pregnant with OB and saw Dr Morris on 16 September 2009 (Ex D p. 48). Dr Morris confirmed the viability of the pregnancy by ultrasound (Ex D p. 49). He described the accused's reaction to being told of the viability of her pregnancy as "appropriate" (Ex D p. 52). He raised with her the availability of a test to determine the presence of Downs Syndrome and although he did not arrange that testing, the accused did so herself (Ex D pp.52-53). The testing was carried out on 14 October 2009 by Dr Kesby, who reported that the results indicated an increased risk of Downs Syndrome. As a consequence, further testing, known as "CVS" testing, was carried out (Ex D pp. 53-54). The result of that testing was normal and this was discussed between the accused and Dr Morris at a later consultation on 28 October 2009 (Ex D p. 55-56).
On 6 October 2009 the accused had an unscheduled appointment with Dr Morris as a result of an increase in bleeding and cramping. After examination and an ultrasound, Dr Morris reassured the accused of the viability of her pregnancy. OB was delivered by Dr Morris at Royal Prince Alfred Hospital on 21 April 2010 (Ex A para. 8).
After OB was born, RB assumed the role of being "the principal bather" (T14 L49) and would generally bath OB in the evening after he came home from work (T31 L22-27). After OB had outgrown a baby bath RB decided to start bathing her in the bath located in the bathroom of his home (T15 L21-22). RB gave evidence of a "Bumbo" seat in which OB would be seated when bathed (commencing at T15 L38). He explained that the seat was not stable and that although it created a type of vacuum when pushed down in the water, it would "pop up" unpredictably (Ex A para. 20; T31 L33 and following). The seat carried a warning against use in the bath (Ex AW para. 7). RB explained (commencing at T16 L14) that he had told the accused not to leave OB in the bath alone and said that he himself had not done so (T16 L48-49). He described the accused (commencing at T32 L11) as absent minded, although he said that her presentation in this respect in 2010 was "roughly the same" as it was at any other time.
After OB was born Dr Morris saw her on 8 June 2010 (Ex D p. 67) and referred her to Dr James for what was described as a "routine" purpose (Ex D p. 67). Dr Morris had no contact with the accused after 8 June 2010.
Leaving aside the matters which are discussed in detail below, the only other documented difficulty reported by the accused following OB's birth was on 27 April 2010, when she reported problems associated with breast feeding. A home visit was made on 13 May 2010 (having been rescheduled from an earlier date) by Keryn Ferguson, a Child and Family Health Nurse. The problem was discussed and there were no issues which warranted a follow up visit.
The accused's initial concerns about OB's appearance
RB said (T14 L40 and following) that when OB was born the hospital staff noted the presence of skin tags near her ears. They were also noted by Ms Ferguson when she visited the accused at her home on 13 May 2010 (Ex E p. 3). When asked how the accused responded to the skin tags, RB said that she "just wanted to know what they were" (T14 L44).
Josephine Dattilo, who was then a close friend of the accused, saw her in hospital within a couple of days of OB's birth (T87 L24-26). After the accused returned home, Ms Dattilo had a conversation with the accused in the course of which the accused said that OB "had a couple of little skin tags that she was looking into (which she) wanted ... removed because (she) didn't want her teased" (T87 L48-49). When asked whether the accused had said anything about the appearance of the skin tags Ms Dattilo said (T88 L27-28):
"Well, she didn't like them. They didn't look good and she didn't want her daughter to be teased".
Another close friend of the accused at the time, Natasha Di Nunzio, was overseas when OB was born. When she returned approximately two weeks later, she went to the accused's home and saw her and OB. She said that on that occasion the accused (commencing at T74 L33):
"... was preoccupied with skin tags. And I said not to worry; I just wanted to have a look at her. So she walked me into the bedroom to have a quick look at her. ... She mentioned that she had them on her ears and how soon could she how soon can a child have plastic surgery to remove them. ... I just said not to be stupid".
The evidence of Ms Dattilo and Ms Di Nunzio is generally consistent with evidence of RB (Ex A para 9) that the accused enquired as to the age at which the skin tags could be removed.
The evidence of SG (the accused's mother) was that the presence of skin tags on OB's ears was "not a major concern" (Ex. B para. 12). Even if that was the position from SG's perspective, I am satisfied that it was not so from the perspective of the accused who, as I have outlined, displayed significant concern to Ms Dattilo and Ms Di Nunzio.
The initial consultation with Dr James - 24 June 2010
Dr James is a Consultant Paediatrician who saw OB on seven occasions between 24 June 2010 and 28 October 2010. He said (Ex. F1 para. 5) that at all times, OB presented as being well cared for, well nourished, and interactive.
Dr James said (Ex F1 para. 8) that at the time of OB's initial examination, there was a clinical suggestion of proximal limb shortening. He arranged a renal and bladder ultrasound to exclude any abnormality associated with the skin tags, along with an x-ray of OB's right upper limb to investigate the suggestion of proximal shortening. Dr James explained (Ex F2 para. 5) that when he saw OB and the accused on 24 June 2010 he did not use the term "dwarfism", but explained that limb shortening can sometimes be associated with achondroplasia. He told the accused that he did not believe that OB was suffering from achondroplasia but that an x-ray would be valuable to exclude it.
The suggestion that OB may have had limb shortening caused the accused immediate and significant concern, compounding that which had previously arisen in relation to OB's skin tags. RB described the accused as being "in shock" after the possibility of limb shortening being raised and explained that the accused commenced to research the condition on the internet (Ex A para. 9). He described the accused (commencing at T19 L40; T 28 L29) as being "concerned that (OB) was a dwarf". The conclusion that the accused became distressed and anxious at the suggestion that OB was a dwarf is supported by the evidence of SG, who described the accused as being "shocked and worried that this might be leading to a serious syndrome" (Ex B para 12).
Such a conclusion is similarly supported by Ms Dattilo. The accused told Ms Dattilo that she had visited a Paediatrician who had raised the question of OB having limb shortening and dwarfism (T88 L35-48). Ms Dattilo reassured the accused that "everything would be okay" (T89 L2). Similarly Joanne Dinov, another close friend of the accused, visited the accused following OB's birth. When asked whether there was any mention by the accused about OB having any abnormality Ms Dinov said (T111 L20):
"Something to do with her limbs and the possibility of her being a dwarf."
Ms Dinov said that the accused told her that she had been undertaking research on the internet as a result of her concerns (T111 L31-50).
The test results of 6 July
On 6 July 2010 an x-ray of OB's right upper limb, and a renal ultrasound, were conducted and reported as normal.
The second consultation with Dr James - 7 July 2010
Dr James examined OB again on 7 July 2010 at which time he reviewed the results of the x-ray and renal ultrasound. He reassured the accused that no abnormality had been detected, and that there was no evidence of proximal limb shortening. He explained that this meant that OB did not have achondroplasia (Ex F2 para. 6). He suggested a clinical review in several months' time and advised the accused that OB's skin tags should be surgically removed before she reached 12 months of age. At that stage, at least from Dr James' perspective, nothing further was required.
The third consultation with Dr James - 14 July 2010
On 14 July 2010, the accused telephoned Dr James' surgery and spoke with his receptionist, Ms Angela Tsamtseres. She told Ms Tsamtseres (Ex G paras. 7 and following) that her internet searches had revealed that x-ray results were not conclusive in terms of excluding the possibility of achondroplasia and that she wanted to have a genetic blood test conducted. She said, in particular:
"Please I need (Dr James) to refer me to a Geneticist. I feel when I look at her, I'm seeing the signs of a dwarf".
Ms Tsamtseres then spoke with Dr James and an appointment was arranged for later that day (Ex G para 9). In respect of the examination of OB on that occasion Dr James stated (Ex F1 para. 10):
"OB appeared well. Her length was 58cm and head circumference 38.7cm both between the 25th and 50th percentile and weight 5.71kg between the 50th to 75th percentiles. A skeletal survey was ordered in view of a (sic) impression of slight proximal limb shortening and flat nasal bridge and frontal bossing."
He further stated (Ex F2 para. 8):
"The mother told me certain things about genetic testing and how she wanted more detailed testing to rule out Achondroplasia which she referred to as "dwarfism". I recall she told me that she had seen photos on the internet. I believe the accused raised the issue of the frontal bossing to me. I then made an observation of a flat nasal bridge and wrote the word "prominent" which would have meant prominent forehead. This is the same as frontal bossing. I ordered a skeletal survey. I ordered this not because I believed OB had Achondroplasia but to placate the accused. I told the accused on every occasion that OB was normal and did not have Achondroplasia".
Ms Tsamtseres stated that after that consultation she had spoken to the accused who said that she was feeling better (Ex G para. 10).
According to RB, the reference to the possibility of frontal bossing rendered the accused's emotional condition worse (Ex A para. 10). That assessment is supported by what followed over the next several months.
The skeletal survey - 20 July 2010
A skeletal survey performed on 20 July 2010 showed no evidence of achondroplasia, nor skeletal dysplasia (Ex F3).
The fourth consultation with Dr James - 21 July 2010
Dr James examined OB on 21 July 2010 and noted that the skeletal survey was reported as normal. However he also noted (Ex F1 para. 11):
"... mother was anxious ++, convinced OB has Achondroplasia and is crying today - this will affect maternal bonding."
Dr James explained (Ex F2 para 9) that whilst it was not uncommon for first time mothers to be anxious, and to require reassurance, the accused seemed convinced that OB had achondroplasia and was not normal, despite his attempts to reassure her to the contrary. In the circumstances, Dr James referred the accused to Dr Anne Turner, the Head of the Department of Medical Genetics at the Sydney Children's Hospital (Ex F1 para. 10). His letter of referral was in (inter alia) the following terms (Ex F2 para. 10):
"I suspect this baby is normal but mother is "hysterical" with concern and is convinced her baby has (Rhizomelic shortening) and needs genetic testing. Please see her asap or maternal bonding will suffer."
The first consultation with Dr Turner - 21 July 2010
Dr Turner first examined OB on the afternoon of 21 July 2010 in the presence of Dr Kathy Wu, a trainee Geneticist. Dr Turner described OB's appearance as being that of a "normal healthy baby .... of three months of age" (Ex H1 at paras. 4-5). She stated (commencing at para. 9 of Ex H1) that she reassured the accused that OB was a normal baby. In response to a specific query, she reassured the accused that OB's limb length was normal and that there was no indication of any bone disorder on x-ray. Dr Turner also explained to the accused that based on her clinical examination and the x-ray results, she was able to exclude any diagnosis of achondroplasia.
Despite this, the accused remained concerned and Dr Turner agreed to conduct genetic blood tests to further exclude achondroplasia. Dr Turner also offered to forward OB's x-rays to Professor David Sillence, a Genetic Bone Disease expert, for further reassurance.
Dr Wu described the accused as appearing "very anxious about the possibility of an underlying genetic condition in OB". She confirmed the opinion of Dr Turner that there were no significant indicators of a genetic problem (Ex J para. 5). She also confirmed that the accused's degree of anxiety was so great that further testing was arranged to provide additional reassurance. In doing so, Dr Wu recalled that the accused had said words to the effect:
" ... every time I look at her, she looks like a dwarf.'"
On 28 July 2010 Dr Turner wrote to the accused and said (inter alia) (Ex H2):
"On examination, OB was an alert and engaging baby who was constantly vocalising. Her growth parameters were all within normal range. She indeed had excellent tone and strength in her arms and legs. We noted the skin tags on her ears; otherwise her ears were normally formed and placed. We could appreciate your concerns about her flat nasal bridge and upturned nose, however, there (sic) are indeed subtle differences that may well be baby features or familial trait.
We reviewed the skeletal survey with Professor David Sillence, a world authority on skeletal dysplasias, who thought OB's skeletal survey was completely normal, with no evidence of Achondroplasia or Hypochondroplasia.
We discussed that skin tags on ears are very common and likely to be an isolated variation in OB given her normal growth and development, rather than having a genetic underlying cause. For your reassurance and given that you are planning your second pregnancy in the near future, we have arranged for OB to have a blood sample taken for chromosome analysis, MLPA and genetic testing for skeletal dysplasia.
We have tentatively arranged a follow-up appointment on 30th August, by which time we should have the above testing results. It will be helpful if OB's father can be present at our next appointment and if you can also bring some family photographs".
The accused's presentations to Dr Soo
Dr Soo, a General Practitioner, saw the accused on 26 July 2010 when she presented with anxiety following the recent death of her grandfather. Dr Soo reported (Ex L para. 6):
"The accused was already on Xanax and was given a repeat script."
It is not clear from Dr Soo's statement who prescribed Xanax prior to this time.
On 11 August 2010 the accused again presented to Dr Soo and complained of anxiety. Dr Soo reported (Ex L para. 7):
"From my notes I noted that her baby daughter had short limbs and was undergoing genetic testing. ... As a result of this consultation I prescribed her Zoloft tablet 50 mg, 1 at night".
The accused's conversations with friends
I have already made reference to the accused having contact with a number of her friends in the period shortly after OB's birth. That contact continued over the ensuing months, right up to the time of OB's death. In the course of that contact, the accused not only expressed her concerns about OB but made various statements regarding the effect of OB upon her life. But for one discreet matter to which I have referred below, there was no challenge to the evidence of the statements made by the accused to her various friends.
Ms Di Nunzio described the accused as being "preoccupied that there was something wrong with OB" (T75 L23). When asked what she meant by "preoccupied" Ms Di Nunzio said (T75 L28-39):
"... she thought there was something wrong with her and she keeps saying that "there's something wrong with her, I know"... She was very preoccupied that there was a mutation or she'd been taking her for several tests. She was preoccupied with what the results would be. So the conversations were normally about why this was happening to her and why did she deserve this to happen to her and to her husband."
When asked whether the accused had expressed a particular concern about OB, Ms Di Nunzio responded (T76 L3-6):
"She thought that she was dwarf, that possibly that the results would indicate that she had dwarfism. ... Basically ... she felt her life with her husband was affected because of the state of the baby, and she felt guilty that she'd produced a baby that could possibly have something wrong with it, and she mentioned that her husband had said to her to to leave, gave her the opportunity to leave, and he'll look after the baby and she can get on with her life. And she said to me that, you know, she was happy with her marriage with her husband and why should she let this affect her marriage."
Ms Di Nunzio said (T79 L27-47) that on another occasion the accused had told her that she "couldn't bear to look at (OB) or pick her up". When asked whether the accused had said why she felt that way, Ms Di Nunzio responded (T79 L47):
"It was all to do with what she believed was wrong, was wrong with OB".
The accused also told Ms Di Nunzio that she felt that her life had been affected by OB, and that she felt guilty that she had "produced a baby that could possibly have something wrong with it". She also questioned why she should allow any issue in relation to OB to affect her marriage (T76 L6-14).
Ms Di Nunzio also said that the accused thought that OB's abnormalities were a "punishment" for something, although she did not know what (T80 L32-39). She described the accused, in effect, as a person who took pride in her appearance, particularly in relation to her hair and make up (T76 L32-38).
Ms Dattilo became aware that the accused had consulted a Paediatrician, and spoke with her on a weekly basis about the tests which were being carried out. She said that apart from the accused having expressed a fear that OB may be a dwarf, she had also expressed concerns about the shape of OB's forehead as well as the shape of the bridge of her nose (T91 L11-24; T94 L31-37).
In relation to the accused's concerns about OB's possible dwarfism Ms Dattilo gave the following evidence (T93 L12-20):
"Q. In relation to MB raising her concern about OB being a dwarf, did she say anything to you about how she would react if OB was a dwarf?
A. She would have to get rid of her.
Q. Can you remember how she said that or what words she said?
A. She said that she didn't want she had the perfect husband and the perfect job, and she didn't want the quality of her life to diminish in any way. She also expressed that she had a fear of dwarfs, and that she would have to get rid of her, and apparently she had had a discussion with-"
According to Ms Dattilo, this was said in a conversation in about September 2010 (T100 L48 - T101 L24). Ms Dattilo gave a lengthy statement to the police on 19 April 2011. She gave evidence in the committal proceedings in November 2012. She made no reference, on either occasion, to the accused saying that she would have to "get rid" of OB. When asked why this was so, she said (T99 L36 - 42):
"...It was quite daunting being at a police station for the first time and having to give such a long statement. We have a very close friendship, best friends one could say, and there were many things that have gone through my mind in the last four years of conversations that we had had. We sometimes there were days that we had more than one conversation in a day, conversations just about every day. It's very difficult to remember absolutely everything. "
In para. 21 of her statement to police Ms Dattilo had said (T102 L33-37):
"I recall a conversation with her when the genetic testing was going on where she said words to the effect 'if she is a dwarf, I told RB that OB would have to be taken away' ".
The evidence of Ms Dattilo (T102 L23 - T104 L12) was that the conversation in which the accused had said that she would have to "get rid" of OB was the same conversation in which she had referred to OB being "taken away". When it was put to her that what the accused had said was that OB would have to be "taken away" as opposed to having to "get rid" of her, Ms Dattilo said:
"She did say that as well, throughout that long conversation, because yes. I know 100 per cent that's what she said".
When asked when this conversation had come into her mind Ms Dattilo said (T105 L48 - T106 L3):
"It always pops into my mind here and there. You had so many conversations pop into my mind, I am sure there are other things which I don't remember today or, you know, that you kind of sit back at night and you think. There were things running through my mind last night, conversations, several conversations. Six and a half months is a long time of conversation between very close best friends."
Ms Dattilo denied (T106 L21-34) that her evidence that the accused had said she would have to "get rid" of OB was a lie. Having observed Ms Dattilo give evidence, I did not form the impression that she was a person who would deliberately lie. On the contrary, she presented as somebody who appeared to be doing her best to give truthful evidence. However, it was apparent from her demeanour in the witness box that the process of giving evidence was stressful for her, coming as it did against a background of a long friendship with the accused which, I infer, may have now ended. I can also well understand that the procedure of making a lengthy statement was, for the reasons Ms Dattilo explained, a daunting and difficult experience.
However even when full weight is given to those circumstances, her omission of any reference, both in her statement and in her evidence at the committal hearing, to the accused having said that she would have to "get rid of" OB, defies explanation. This is particularly so in circumstances where, in making her statement, she had alluded to the fact that the accused had made reference to OB having to be "taken away", this being something that she maintained was said in the same conversation as that in which the accused had referred to "getting rid" of OB.
In these circumstances I am not able to accept that the accused told Ms Dattilo that she would have to "get rid of" OB. However, there was no challenge to Ms Dattilo's evidence that the accused had said that if OB was a dwarf she would have to be "taken away". I am satisfied that this was said by the accused.
Ms Dattilo was also asked about conversations she had had with the accused about the accused's ability to bond with OB (T93 L45-49):
"Q. Did MB say anything to you about how she responded to OB?
A. She said that OB wasn't responding, and that she was a frittata.
Q. Frittata?
A. Yes. Which is which is basically in Italian an omelette."
Ms Dattilo also gave evidence of the accused and OB attending her own son's birthday party in September 2010. She described (T94 L17-29) OB being dressed that day in a "very thick hooded suit which concealed the presence of the ear tags". The party occurred in September 2010 at a time when, according to Ms Dattilo, the weather was "very warm" (T94 L12). Ms Dattilo described the accused as a person who was always meticulous in her presentation (T96 L40-41). The obvious inference to be drawn from these parts of Ms Dattilo's evidence is that the appearance of OB's skin tags remained an issue for the accused at that time.
Ms Dinov said that the accused had expressed concern to her "many, many, many times" about OB having limb shortening (T112 L12-16) and about the possibility that it was indicative of achondroplasia. The accused went to the extent of asking Ms Dinov for a photograph of her son for the purposes of comparing his limbs with those of OB. Ms Dinov also said that the accused had expressed concerns about OB's forehead as well as the shape of the bridge of her nose (T112 L31-37). Ms Dinov was aware that OB was undergoing genetic testing (T112 L42).
Ms Dinov said that on the occasions when she visited the accused after OB's birth she saw little in the way of affection or bonding between them (T113 L23-24; T113 L45-47; T115 L10-14) which the accused had attributed to "the doctors" (T115 L20). She also gave evidence (T115 L44-50) that when walking with the accused in a local park, the accused would make reference to "ferrals" having "normal children", and questioning why "God punished her".
The referral to Dr Betts
In the days following Dr Turner's initial examination, the accused made several enquiries about the test results (Ex H1 para. 14). On 10 August 2010 she called and spoke with Dr Wu and expressed her ongoing concern that OB had a genetic disorder. Dr Wu said (Ex J para. 8):
"On most occasions she sounded very distressed and anxious about the genetic testing results...Because I could hear in her voice that she was not coping, I spoke to the lab to try and speed up the results of the genetic testing.
One of the phone calls I recall having with the accused was that she was feeling so anxious on this particular occasion that she could not bring herself to come to the appointment because of fear that she would hear something bad."
At about that time, Dr Turner and Dr Wu decided that the accused's levels of anxiety warranted a referral to Dr Betts, the Deputy Head of Psychology at the Sydney Children's Hospital (Ex H1 at para. 15). Dr Wu asked Dr Betts to assist in the accused's psychological management, with particular reference to anxiety associated with her concern that OB had a medical syndrome such as achondroplasia (Ex C para. 6).
On 11 August 2010 Dr Betts contacted the accused by telephone. The accused told him that she was coping adequately and declined Dr Betts' offer of an appointment. When asked to describe the accused's state of mind at that time Dr Betts said (T50 L8-11):
"I felt she was anxious and I note in my email that I say that MB spoke to me rather than and that I listened, and I mentioned about energy and a lot and she admits to a lot of anxiety. So I did form the opinion that she was very anxious, but that she was coping."
On 18 August 2010 the accused called Dr Betts and asked him to facilitate her admission to a psychiatric facility in the event that the results of OB's genetic testing evidenced an abnormality. She also told Dr Betts on that occasion that she was having "a lot of difficulty" coping with her anxiety (T50 L33-38). When pressed by Dr Betts about how she felt she would react if OB was found to have achondroplasia, the accused responded that "she wouldn't be able to cope at home with the baby etc", but did not elaborate further (T50 L43-44). Dr Betts described the accused's state of mind at the time in the following terms (at T51 L9-12):
"... she was extremely anxious and ... she needed further treatment for her anxiety. I did also ask relevant questions about depression, the symptoms of depression, and she denied the symptoms of depression but openly admitted to anxiety."
Although the accused denied any feelings of depression, she spoke with Dr Betts about her stress levels (T51 L39-43). Dr Betts explained (at T52 L3-5) that the accused cited, as the cause of her stress, the possibility that OB had dwarfism. He formed the view that the accused should be referred to a psychiatrist and contacted Dr Turner seeking a referral to Dr Rickard-Bell (Ex H1 para. 16) with whom an appointment was arranged (Ex C para. 8). Dr Betts took that step in light of the accused's anxiety (T52 L36-50).
Dr Turner's referral to Dr Rickard-Bell made reference to the fact that the accused was anxious regarding the results of OB's genetic testing and was either not responding to reassurances, or was irrational when doing so (T171 L46 - T172 L4).
The involvement of Carolyn Shalhoub
Ms Carolyn Shalhoub, the Senior Genetic Counsellor at the Sydney Children's Hospital, became involved in the accused's management at the request of Dr Turner because of concerns about the accused's extreme levels of anxiety (Ex K para. 4). Ms Shalhoub telephoned the accused on 19 August to inform her that the genetic testing for achondroplasia had detected no abnormality. The accused responded (Ex K para. 5):
"I have been living in fear for several weeks, even prior to seeing genetics, my anxiety had begun when I first heard from the paediatrician that there was a suspicion of shortened limbs and bossed forehead. The anxiety that I have been experiencing is a reaction to the uncertainty of the situation and that I could ultimately cope with bad news but I just can't bear waiting for the results. I just want to know as soon as possible if there is condition in OB so that she can start any appropriate treatments etc."
When Ms Shalhoub asked the accused whether she had experienced stress or anxiety in the past, the accused responded (Ex K para. 6):
"No, this is definitely the scariest thing I have ever had to face...I have never experienced depression but maybe I am beginning to feel a little depressed lately as a direct result of all of the anxiety, but no more than that."
When asked whether she thought that she would benefit from consulting a psychiatrist the accused responded (Ex K para. 7):
"I don't think I need to, now that the result has come back normal, but I am open to this in the future if the anxiety does not settle."
Despite these statements, the accused subsequently telephoned Ms Shalhoub and expressed her concerns about OB, from which it was evident to Ms Shalhoub that the accused's anxiety remained. After further discussions, and in light of the accused's continuing anxiety, it was agreed that the appointment with Dr Turner scheduled for 30 August 2010 should be brought forward to 26 August 2010. This was because Dr Turner was concerned about the accused's levels of anxiety, and thought that an earlier consultation would allow an opportunity to reassure her about the absence of any abnormality in OB (Ex H1 para. 17).
The second consultation with Dr Turner - 26 August 2010
When Dr Turner saw the accused, OB and RB on 26 August 2010, she found that all of OB's parameters were well within normal limits. Comparison with measurements taken on the previous occasion indicated normal growth during the intervening period (Ex H1 para. 21). Dr Turner reassured the accused and RB that OB was growing and developing normally and that no abnormalities were apparent on physical examination. The accused responded by telling Dr Turner that she felt reassured (Ex H1 para. 22). At that time Dr Turner mentioned that a final test, known as a "CGH microarray", had been ordered. She explained that this test was designed to detect chromosomal abnormality but said that she expected the results to be normal. Ms Shalhoub was in attendance at this appointment. She said that RB had expressed the view that he "fully believed" that OB had no abnormality but that the accused had not been able to see that this was the case. She said that the accused had said that OB's "problem" had commenced prior to her birth (Ex K para. 9).
Shortly after the appointment, the accused telephoned Ms Shalhoub and said (inter alia) (Ex K para. 10):
"I wanted to talk to express my on-going concerns about OB. I was not able to express my concerns in the appointment with my husband present. I feel that he does not believe that there is anything wrong with OB and that he is tired of hearing my concerns. RB is a good man and I do not want to cause any further friction to the relationship, by raising my concerns in the appointment. The car trip home would have been very difficult if I had done so. Despite all the evidence dismissing achondroplasia, I still feel that OB has dwarfism. I have measured and compared the lengths of the limbs of all the babies in my mother's group and am convinced that OB's is abnormal. I have also compared her hands and feet to the other babies and again am sure that they are smaller...OB's ears are different to mine and RB's which must be a sign that there is something wrong; OB's nasal bridge is depressed; her eyes are blue which again must be a sign of a problem as RB and I have brown eyes. I really feel that something isn't right. My mother's intuition is telling me so."
When asked by Ms Shalhoub whether or not she had ever had any contact with a dwarf, the accused replied:
"I remember a dwarf in my neighbourhood as a child, which used to considerably frighten me."
The first consultation with Dr Betts - 26 August 2010
Dr Betts met with the accused for the first time on 26 August 2010, over a period of 25 minutes. He recorded (inter alia) the following (Ex C para. 10):
"...(the accused) and her husband RB attended with their daughter OB. They had just come from their appt. with Dr Anne Turner and she said she was reassured by what they had said - normal results. (The accused's) presentation today was as she had been over the phone to me - anxious, a tendency not to listen to what is said but to repeat statements to justifying (sic) the 'normality' of her anxiety. I found I had to interrupt her politely but firmly many times to be able to say what I needed to, which was some Psychoeducations on anxiety and how it is best dealt with and reduced. I also warned both MB and RB that with the kind of anxiety, a temporary reassurance does not take away the worries but they tend to rebound unless the underlying reasons for the anxiety are addressed and treated. She told me she had had a scary experience when she was a child - a dwarf lived in their neighbourhood and whenever she saw this person she ran away screaming. Suggested Dr Chris Rickard-Bell would advise on treatment. Appt. for next Tuesday..."
Dr Betts said (T59 L6-21) that when he spoke with the accused she "justified the normality of her anxiety". He said that he did not consider that the accused was exhibiting delusional thinking, but explained that when he later learned that the accused had told other people she was not reassured by the test results, he raised that possibility. He agreed that if the accused was delusional such a condition would overlap with a psychosis (T61 L8-26).
The accused told Dr Betts that she was "reassured" by what Dr Turner had told her (T54 L17-33). That, of course, was not consistent with the content of her conversations with Ms Shalhoub following the appointment with Dr Turner. As to the accused's presentation, Dr Betts said (T53 L49 - T 54 L15):
"I think it was simply that she was worried that OB or had been worried that OB had a medical condition such as achondroplasia, and that was what she was trying to justify to me, the normality of mothers or parents being concerned as concerned as she had been about that possibility."
On the following day, 27 August, Dr Betts spoke with Ms. Shalhoub (T54 L39 and following) who informed him of her conversation with the accused on the previous day (Ex H1 para. 23). This raised a question in Dr Betts' mind about whether the accused was fit to care for OB. However, in circumstances where the accused had told him that she would never hurt OB, and where she denied any thoughts of harm towards herself (T58 L21), Dr Betts concluded that there was no indication that the accused wished, or intended, to harm OB or herself (T62 L11-45). That assessment is generally consistent with evidence given by RB, who said that the accused "wanted to do everything she could" for OB (T27 L4-9) and that she took particular care in attending to everything associated with having a new born baby. It is, however, somewhat inconsistent with the statements made by the accused to Ms Di Nunzio and Ms Datillo which, as I have noted, were not challenged.
Dr Betts remained of the view that the accused required psychiatric intervention to treat her anxiety, and explained that he was "very worried" about her (T61 L35-41). He offered to expedite the forthcoming appointment with Dr Rickard-Bell but the accused declined that offer (Ex C para. 11; T56 L14). At about this time, Dr Betts had a number of telephone conversations with the accused and RB, independently of each other. When he spoke with RB, Dr Betts expressed concern about the accused's state of mind and advised RB that he should "watch her carefully" (T56 L35-39). Dr Betts said (commencing at T57 L2) that there were a number of things which caused him concern, including the accused's continuing belief that OB suffered from some type of syndrome, and a fear that the medical staff conducting the tests "may have missed something".
On 28 August 2010 the accused called Dr Turner's secretary asking that she be provided with copies of all test results by 2.00 pm that day. Those results were provided to her. The accused complained that she was not provided with that information at the time of her consultation on 26 August, although she had not requested it at the time (Ex H1 para. 24). Later the same day, there were discussions between Drs. Turner, Wu and Betts, and Ms Shalhoub, in which Dr Turner expressed concern that the accused's anxiety, and her inability to accept reassurance, were substantially in excess of what she was accustomed to seeing. She contacted Dr Rickard-Bell to make him aware of her ongoing concerns, but it was agreed that because the scheduled appointment was only four days away, it should remain in place and not be brought forward (Ex H1 para. 25).
The consultation with Dr Rickard-Bell - 31 August 2010
Dr Rickard-Bell conducted an initial consultation with the accused over a period of 45 to 50 minutes on 31 August 2010 (T172 L16-20). Although he had planned a follow up appointment no such arrangement was made, (T172 L30-32) due to the accused having difficulties in finding someone to look after OB, and the distance between her home and Dr Rickard-Bell's consulting rooms (Ex H1 para. 27).
Dr Rickard-Bell described the accused as "very professional in her presentation" (T172 L43) and noted that her mood fluctuated from being very anxious and tearful to reacting in a more positive way. He regarded her as "highly anxious" (T173 L27-40). He formed the view that it was likely that the accused had an obsessional personality (T174 L1-6). He could find no evidence of thought disorder or illogicality in thinking, even though some aspects of what the accused said exhibited some abnormality. When asked what was abnormal or unusual in this regard Dr Rickard-Bell responded (at T174 L18-23):
"So her preoccupation about her child's her fears about her child's illness appeared to be exaggerated and indicated there was some psychiatric problem in that she had this strong preoccupation with the child's condition, perhaps dwarfism. It's a very unusual sort of preoccupation. I guess the issue is: Is this consistent with an anxiety disorder or was it reflective of something else?"
When he asked the accused about her concerns regarding OB the accused responded that (T174 L49 - T175 L9):
" ..... she was worried that the child may have dwarfism and even though she had been through testing, she still didn't feel that was conclusive and there was still a level of anxiety that the investigations were not comprehensive ... She believed that the child appeared to have shorter limbs than was normal and that there were some ear tags that can sometimes be associated with congenital defects and that she felt there was some flattening of the face."
The accused told Dr Rickard-Bell that in addition to speaking with medical staff, she was also conducting her own research on the internet. He regarded this as a common presentation in people who were obsessional and highly anxious (T175 L11-29).
Dr Rickard-Bell said that despite the fact that all of the testing conducted up to that time was reported as normal, the accused remained anxious about whether or not this was truly the case (T174 L28-32). The accused had indicated that she wanted to obtain the outstanding test results, and she said that the Doctors who had been investigating OB did not exhibit the same level of concern as she did (T175 L36 - T176 L2).
Dr Rickard-Bell concluded that there was no evidence of cognitive disturbance (T174 L34-36) and he did not think that the accused's concerns about OB were interfering with her ability to care for her. On the contrary he observed that one of the accused's main wishes was to be able to care for OB as well as she could, to the point where she was over protective (T178 L7-12; T186 L32-39; T176 L4-8).
In terms of his provisional diagnosis, Dr Rickard-Bell gave the following evidence (commencing at T176 L10):
"Q. Did you in fact form an impression that what the accused had was a hypochondriacal preoccupation and overvalued ideas about OB's genetic problem?
A: That was my conclusion from an initial consultation of 45 to 50 minutes where I only had the direct information of preoccupation from her and the referring letter from the geneticist, so I didn't have at that time and normally one would like to have other corroborative information from others in the person's family or other medical practitioners or mental health practitioners that she may have been involved with. So from that snapshot of her condition, that was my provisional diagnosis".
Dr Rickard-Bell could not exclude the possibility that the accused's presentation was part of a forming or developing psychosis. Although he agreed that there were factors which accounted for the accused's anxiety, he pointed out that this was based on a single interview, or "snapshot" (T177 L19-38).
Dr Rickard-Bell agreed that it was possible for a person to present as the accused did and descend into psychotic presentation over the ensuing days, weeks or months (T181 L47 - T182 L1). Equally, he agreed that it was possible that such a deterioration would not happen at all. He had expected that her condition would improve over a period of time with appropriate assistance and treatment (T183 L5-7). He agreed that the accused was suffering from something more than an adjustment disorder but saw no indication of the onset of schizophrenia (T184 L5-47).
The fifth consultation with Dr James - 1 September 2010
Dr James examined OB on 1 September 2010 and reviewed the earlier report of Dr Turner. He noted (Ex F1 para. 12) that the accused was "still concerned" and felt that OB's head was "too prominent".
On examination of OB, Dr James noted her measurements and recorded that apart from some slight frontal bossing, OB had a normal skull shape. He ordered a further ultrasound and suggested that the accused provide him with photographs of herself and RB as babies for clinical comparison (Ex F1 para. 12). Dr James explained (Ex F2 para. 11) that this consultation did not focus on any suggested achondroplasia, but rather the frontal bossing. He explained that he referred OB for an ultrasound because the accused felt that OB's forehead was too prominent. He also explained that this referral represented a "further attempt to reassure the accused who seemed preoccupied that OB's head was not normal and that there was something else wrong, even if she did not have achondroplasia" (Ex F2 para. 11).
The tests of 9 September 2010
On 9 September 2010 a head ultrasound was reported as evidencing mild prominence of the extra axial CSF spaces which were just above upper limits of normal (Ex F3). It was observed that this would need clinical review and follow up.
The conversation with Ms Shalhoub - 21 September 2010
The accused telephoned Ms Shalhoub on 21 September 2010 and informed her that she had not been able to keep her follow up appointment with Dr Rickard-Bell. On that occasion the accused said to Ms Shalhoub (Ex K para. 12):
"I am not convinced that (OB's) arms are of normal length and in addition I am now extremely concerned about OB having frontal bossing...I am very worried because the measurement in question is a few millimetres above the normal range. I have seen a paediatric surgeon and he is not convinced that there is frontal bossing and added that OB's forehead's appearance is normal and familial in appearance. But I am not convinced by this, I am sure OB will require head surgery to rectify her forehead size."
Ms Shalhoub formed the view that the accused's anxiety was escalating (Ex K para. 12).
The sixth consultation with Dr James - 29 September 2010
Dr James reviewed OB on 29 September 2010. He noted the results of the ultrasound conducted on 9 September and noted that both the accused and RB had said that they were "reassured" by (inter alia) the fact that they had consulted a Professor Gianoutsos, who had expressed no concern about OB's skull shape. Dr James said that at that time he was confident that OB was a normal, healthy baby. He recommended a review in 2 months (Ex F1 paras. 12-13).
The accused's admission to hospital - 19 October 2010
In about mid October 2010, the accused and RB discussed obtaining treatment for the accused's anxiety (commencing at T29 L 41). On 19 October 2010, having initially presented to Concord Hospital, the accused was referred to the Hills Private Hospital where she was seen by Dr Manambrakkat (Ex M1 p. 17, Ex M2). Dr Manambrakkat obtained a history from the accused which included reference to OB's skin tags, as well as the accused's fear that OB was suffering from some genetic abnormality (Ex M1 p.23).
Dr Manambrakkat concluded that the accused's mood was depressed, and that she had significant anxiety. However, he stated that she was neither psychotic nor suicidal. He diagnosed an adjustment disorder with depressed mood and prescribed Avanza (Ex M1 p. 21-22). He explained (Ex M1 p. 22) that the accused "was facing a stress and was responding to, adjusting to that, in perhaps a maladaptive way".
Dr Manambrakkat saw the accused the following day, 20 October 2010. The accused said that she was feeling better and was keen to leave hospital because she felt guilty about leaving OB at home (Ex M1 p. 25). The accused also expressed the feeling that her mental state would improve with the support of family and friends (Ex M1 p. 25). Dr Manambrakkat concluded that the accused's anxiety was improved and she was discharged from hospital (Ex M1 p. 26).
The notification of the test results - 26 October 2010
On 26 October 2010, Ms Shalhoub told the accused that the CGH array tests had been reported as normal. Ms Shalhoub stated that the accused seemed "surprised" when given this information (Ex K para. 13). The accused told Ms Shalhoub that she had not bothered to attend any further psychiatric appointments because she "felt OK" (Ex H1 para. 28).
SG gave evidence of the accused being informed of the final test results (commencing at T38 L23):
"... it was Friday I remember. I don't remember the date. It was about almost a week prior to accident. And she said to me she rang me, "Mum" she said, "Mum, guess what. There is really good news." Baby OB's results came like okay, good. It was good news. She was excited about it. And I said, "MB, yes, there is nothing to worry. Baby OB has been normal. She's all right."
RB said that he and the accused were walking in a park when they learned of the final test results (T30 L23-25). He described the accused's reaction as being one of "relief" (T21 L20-22) and said that they were "quite happy" (T30 L25). RB said that from that time until the time of OB's death the accused "seemed okay"(T21 L24-26). He described her (T21 L30-31) as being "a bit more relaxed; ...still coming to terms with it all, but ...she was getting better".
The seventh consultation with Dr James - 28 October 2010
(i) not having fully recovered from the effect of giving birth to the child; or
(ii) the effect of lactation consequent upon the birth of the child.
The Crown submitted that the reference to the "effect of lactation" informed the proper meaning of the phrase "the effect of giving birth". It was submitted that such a phrase required that there be evidence that the disturbance of mind had come about by reason of some direct effect of the process of giving birth, as opposed to some condition which had arisen independently as a consequence of other factors. The Crown submitted that the opinions of both Professor Greenberg and Professor Buist supported the conclusion that there were a number of other factors, over and above those stemming from the effect of giving birth, which were causative of the accused's mental condition and that accordingly, s. 22A had no role to play.
Submissions of the accused
Counsel for the accused submitted that it was open to me to find that the circumstances of the present case fell within s. 22A. That submission was not further developed. In particular, counsel for the accused, having been given the opportunity to do so, made no submission in response to that of the Crown in respect of the meaning of the phrase "the effect of giving birth" as it appears in s. 22A.
Consideration
In the course of submissions, the Crown referred me to R v Yihwai and Aku [1963] PNGLR 40, a decision of Mann CJ in the Papua New Guinea Supreme Court. That was the only decision which the Crown had been able to find where a provision such as s. 22A had been considered. I have not been able to find any other decision from my own research of the matter.
In that case, the co-accused Aku was the father of Yihwai, who was pregnant. Yihwai was prevented by her father from marrying because he intended her to be his "domestic". He instructed Yihwai to kill the child when the child was born, and this she did. The provisions of the Criminal Code Act 1974 (PNG) and s. 3(1) of the Infanticide Ordinance 1953-1956 (PNG) combined to create a provision in the same terms as s. 22A.
Mann CJ concluded that there was no onus on the defendant to establish that the circumstances fell within infanticide, and that the onus was on the Crown to establish that they did not. The Crown has, in my view correctly, adopted that same position in the present case.
His Honour then went on to say:
"Taking the facts of the present case, the question of causation arises, for it is clear from Yihwai's own evidence that her actions were not caused by anything relating to the processes of birth or lactation. She made up her mind to obey her father before the child was born, and her actions were clearly premeditated. Nevertheless, section 3(1) is not expressed in terms of causation, and in my opinion, Yigwai would be entitled to rely on the section if in fact her mental balance was disturbed as specified, even if it did not appear that her decision was due to that mental disturbance. It seems to me that the section contemplates that any decision or action made or taken in that mental state is not to be examined further as to cause and effect, and that once the condition is fulfilled, the criminal responsibility is limited.
The final question therefore comes down to this: does the evidence fairly raise as a defence the proposition that the Accused was in fact in the state of mental disturbance specified? If so, and if the Crown has disproved the existence of that mental state, the Section operates.
The substantial evidence on the point is that of Yigwai herself, who said that she was not sick, that she knew what she was doing, that she intended to kill the child, and was obeying her father's instructions. All of this evidence, in my opinion, tends to prove that the Accused was in full possession of her normal mental faculties and was in the same mental condition as before the birth of the child. I think, therefore, that the facts raise no basis for this defence, but tend to negative the state of mind specified".
The facts in Yihwai were obviously different to those in the present case. The fundamental question in the present case is whether, at the time of the act which I have found caused OB's death:
(i) the balance of the accused's mind was disturbed;
(ii) that disturbance was by reason of her not having fully recovered from the effect of giving birth to OB.
The evidence of Professor Greenberg and Professor Buist supports the conclusion that the accused's mind was disturbed at the time she killed OB. The real issue is whether that disturbance was by reason of her not having fully recovered from the effect of giving birth to OB. This gives rise to the question of what is meant by the phrase "the effect of giving birth".
Although the facts in Yihwai were obviously different, one aspect of Mann CJ's approach is instructive. His Honour construed the term "giving birth" as referring to the actual process of giving birth. That narrow construction is supported by the fact that the only other basis upon which an accused can avail herself of the provisions of s. 22A is where the disturbance of mind is by reason of the effect of lactation.
Mann CJ's construction is also supported by the fact that the application of s. 22A is limited to circumstances in which the child is under the age of 12 months when killed. It is not open to an accused person to rely upon s. 22A where the disturbance arises after that time, and in a way which is tangential to the process of giving birth.
Consistent with that approach, it is my view that in order for the accused in the present case to be able to rely upon s. 22A the disturbance of mind must be by reason solely of her not having fully recovered from the effect of the process of giving birth. The evidence in the present case does not support that conclusion. The opinion of Professor Greenberg, in particular, makes it clear that a series of factors placed the accused under considerable stress, and explained her disturbed mind. These included the separation and divorce of her parents, bleeding in the placenta during pregnancy, consequent fears of losing her pregnancy, contracting gestational diabetes, and suffering from a granuloma of the breast. Professor Greenberg's evidence was clear that all of these matters had a part to play in precipitating the accused's schizophrenic illness (T215 L9-30).
For these reasons I am satisfied that the Crown has discharged its onus and that s. 22A has no application in the present case.
SUBSTANTIAL IMPAIRMENT
The relevant statutory provision
Section 23A of the Crimes Act 1900 NSW is in the following terms:
23A Substantial impairment by abnormality of mind
(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.
(3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.
(4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.
(5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead.
(6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.
(7) If, on the trial of a person for murder, the person contends:
(a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or
(b) that the person is not liable to be convicted of murder by virtue of this section,
evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.
(8) In this section:"underlying condition" means a pre-existing mental or physiological condition, other than a condition of a transitory kind.
The expert evidence
Professor Greenberg said (Ex AT1 p. 28):
" ... I am of the view that MB would likely have a defence of substantial impairment because at the time of the drowning, she was unable to control her actions because she was substantially impaired by abnormality of mind arising from her underlying schizophrenia mental illness".
Submissions of the Crown
The Crown submitted that any impairment of the accused's mental state was not such as to reduce the offence from murder to manslaughter. Whilst the Crown accepted that the accused was mentally unwell at the time of OB's death, it was submitted that her condition did not amount to a substantial impairment for the purposes of s. 23A(1)(a).
In the event that I was to conclude that the provisions of s. 23A(1)(a) were established, the Crown submitted, in particular, that in circumstances where OB was a vulnerable child of only 6 months of age, and in circumstances where the accused retained an ability to function, I should conclude that any impairment from which the accused might have been suffering was not such as to warrant liability for murder being reduced to manslaughter.
Submissions of the accused
Counsel for the accused submitted that "all of the evidence goes to substantial impairment on 18 November". Counsel cited, in particular, the opinion of Professor Greenberg in support of that submission.
Consideration
The accused bears the onus of establishing that she is not liable to be convicted of murder by virtue of this section: s. 23A(4).
In the present case, Professor Greenberg's opinion (which I have accepted) was that at the time of OB's death, the accused was suffering from prodromal symptoms of schizophrenia which were well developed. He expressed the view that such condition impaired her capacity to control her actions (Ex T1 p. 28). That opinion is unchallenged. Professor Buist did not disagree with that opinion, although she was of the view that the accused had in fact developed a psychosis at the time of OB's death. In that sense, her opinion went one step further than that of Professor Greenberg, although the two opinions are not inconsistent with each other.
There is no reason why I should not act upon such opinions. There is no other evidence which outweighs them. It follows that I am satisfied of the matters set out in s. 23A(1)(a).
However, the question posed by s. 23A(1)(b) is quite separate. Whether the impairment is sufficiently substantial to warrant liability for murder being reduced to manslaughter is not a matter for a medical expert. It involves me making a value judgment, rather than reaching a finding of medical fact. It is a task which is to be approached in a broad, common sense way: R v Trotter (1993) 35 NSWLR 428 at 431-432.
In making that judgment I must apply the standards which I regard as prevailing in the community. In R v Bretherton [2013] NSWSC 1036 Harrison J observed (at [25]):
"The terms of s. 23A(2) make it plain that the decision called for by s. 23A(1)(b) is not in fact a medical or technical decision, even if the decision itself is likely, if not certainly, to be one that will have been informed by evidence of that type or character. Section 23A(2) makes is plain, as the Second Reading Speech was at pains to emphasise, that the factual matter requiring determination is at large, and is not in any way to be constrained or limited by expressions of opinion about it. It is abundantly clear that the opinion is one that calls up consideration of an objective community standard, being whether the extent of the impairment was so substantial as to warrant liability for murder being reduced to manslaughter".
The conduct of the accused in the period leading up to OB's death establishes that she regarded OB as imperfect, that she saw her as an interference in her life, and that she wanted to rid herself of her because she perceived, contrary to all medical opinion, that she had a genetic abnormality. She effectively regarded OB as an imposition.
Whilst accused's desire to learn more about OB's suggested genetic abnormality by researching the internet is understandable, her accessing of an article regarding death by drowning is not. The latter is consistent only with an intention to kill OB.
Consistent with all of those considerations, there is evidence of a lack of affection being displayed by the accused to OB in the period leading up to OB's death, and an associated lack of bonding between them. Indeed, Ms Dinov's observations on one occasion were that the accused had physically treated OB inappropriately. There is also evidence of the accused having experienced a need to rid herself of OB. Amidst all of this, OB was a defenceless 6 month old child who completely relied upon the accused.
I have had regard to the medical evidence of the nature of the accused's illness. Clearly, the accused was suffering a disturbance of the mind in the period leading up to the time of OB's death. However, this is not a case in which the accused's mental disorder was constantly at a level which completely prohibited her from functioning. Professor Greenberg acknowledged that there were periods when the accused was functioning, and when she conducted her life accordingly. Professor Buist regarded aspects of the accused's behaviour in the period between June to November 2010, such as attending medical appointments, socialising with friends, attending to her personal appearance and enquiring about test results as being indicative of focus, albeit that there were times when she became overwhelmed and where the focus could not be sustained (T262 L5-8). Moreover, there is no evidence that the accused was suffering from any particular symptom(s) of her illness on the morning of 18 November 2010, much less experiencing some psychotic episode.
In all of these circumstances, I am not satisfied, bearing in mind the community standards to which I must have regard, that the accused's mental impairment was so significant as to warrant a reduction in her blameworthiness. It follows that the partial defence provided by s. 23A is not made out.
Conclusion as to the offence committed by the accused
It follows from the above that I am satisfied that on the limited evidence available, the accused committed the offence charged, namely the murder of OB. Neither of the partial defences to an allegation of murder are made out.
The limiting term
Had this hearing been a trial before a jury, and had the accused been found guilty of murder, I would have imposed a term of imprisonment. In these circumstances, pursuant to s. 23(1) of the Act, I must nominate a limiting term. In doing so, I do not set a non-parole period. Before nominating such a term I propose to give counsel for the accused the opportunity to put such submissions to me as he considers appropriate.
ORDERS
I make the following order:
(1) 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.
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Decision last updated: 13 March 2017
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