R v McAvoy No. Sccrm-02-256

R v NATALIE GENINE MCAVOY
[2003] SASC 225
Criminal

BESANKO J: This is an application by the defendant to be released on licence under s 269O Criminal Law Consolidation Act 1935 (“Act”). On 29 April 2003 I made the following findings and orders:
“1. Based on the reports of Dr Raeside dated 22 October 2002, Dr Branson dated 29 November 2002 and Dr O’Brien dated 6 March 2003, I find that the defendant was mentally incompetent to commit the offence with which she has been charged, namely murder.
2. Based on the statement of agreed facts dated 24 April 2003 and the submissions of counsel for the director and counsel for the defendant, I find that the objective elements of the offence are established beyond reasonable doubt.
3. I declare that the defendant is liable to supervision under part 8A of the Criminal Law Consolidation Act (1935) and I fix a limiting term of life imprisonment.
4. I further order that the Crown provide the report referred to in s 269R of the Criminal Law Consolidation Act.
5. I order that 3 reports be obtained in terms of s.269T(2) of the Criminal Law Consolidation Act and that those reports deal with the matters referred to in that section and, in particular, the present medical condition of the defendant and the possible effect of her release into the community. Each of the 3 medical practitioners is to be provided with the existing medical reports. One of the 3 medical practitioners is to be Dr Sved Williams.
6. Pursuant to s 269X(2) of the Criminal Law Consolidation Act, I order that the defendant’s bail is to continue and I note the Minister’s obligation to provide a report under s 269Q of the Act.”
The circumstances surrounding the tragic death of Nathan McAvoy may be briefly stated. Nathan was the defendant’s son and he was three months of age at the time of his death. He was found dead in the bath at the family home on 28 January 2002. The defendant was at home that day and recalls preparing to bathe the child. The defendant stated to a member of the family and police that two men wearing masks and carrying a gun entered the house and forced her to drown her baby in the bath by forcing her hands onto the baby in the water. Nathan was suffocated with or without superimposed drowning and the defendant caused his death.
The defendant’s pregnancy with Nathan was a difficult one and the child was born prematurely with some physical defects. After Nathan’s birth but before his death, the defendant had a number of episodes involving a loss of consciousness and it was considered that her condition might have a psychiatric or psychological component. Prior to Nathan’s death, the defendant claimed to have received a number of harassing telephone calls, but it seems that these were the product of her delusional psychiatric condition. The day before Nathan’s death, the defendant claimed to have received a threatening letter but again it seems the defendant had written the note and that this conduct was part of her delusional psychiatric condition.
In making the findings and the orders I did on 29 April 2003, I had regard to a statement of agreed facts and to the reports of three experts in the field of psychiatry, namely, Doctors Branson, Raeside and O’Brien. Each of the experts concluded that at the time of the alleged offence the defendant was suffering from a major and severe depressive illness with psychotic features and that she was not mentally competent to commit the offence.
The question now before me is whether the defendant should be released on licence, and if so, on what conditions. The Director of Public Prosecutions supports the defendant’s release on licence and a set of conditions has been agreed by the Director and the defendant.
On the question of whether the defendant should be released on licence, I have been provided with further expert medical opinion as required by s 269T of the Act, namely:
1.     Report of Dr Raeside dated 23 May 2003.
2.     Report of Dr O’Brien dated 25 June 2003.
3.     Report of Dr Branson dated 4 June 2003.
I have also had the benefit of the most recent report submitted to the Minister under s 269Q of the Act, namely, the report of Dr Anne Sved Williams, dated 12 May 2003.
I have also had regard to the next of kin report dated 26 June 2003.
I note that the defendant has no prior convictions for any offence. The expert opinion put before me, and to which I have previously referred, supports a number of conclusions.
First, the defendant’s major depressive illness with psychotic features has abated due to medication and the ongoing treatment provided by Dr Sved Williams. Secondly, there is nothing to be gained by placing the defendant in an institution such as James Nash House. In fact, it would be detrimental to the defendant’s family relationships. Thirdly, the defendant should be released on licence subject to appropriate conditions which include continuing treatment by Dr Sved Williams, the taking of prescribed medication and periodic supervision by a probation and parole officer. The defendant’s mental state is stable and she is unlikely to re-offend. Fourthly, the defendant has a reasonably good support system in the community and throughout has been strongly supported by her husband. Fifthly, the defendant has been on bail since 28 January 2002 and this has been without incident. The defendant is highly motivated to continue her treatment.
The next of kin report is comprehensive. As I said, the defendant’s husband has been very supportive of the defendant as have a number, but not all members, of his family. Some of his siblings feel that either the defendant has failed to take responsibility for what she has done or should be punished for what she has done. By and large the defendant has the support of her family although there is a history of an awkward relationship between the defendant and her mother.
The statutory criteria to which I must have regard are contained in ss 269S and T of the Act. Those sections provide as follows:
“269S       In deciding whether to release a defendant under this Division, or the conditions of a licence, the court must apply the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.”
“269T(1)     In deciding proceedings under this Division, the court should have regard to –
(a)     the nature of the defendant’s mental impairment; and
(b)     whether the defendant is, or would if released be, likely to endanger another person, or other persons generally; and
(c)     whether there are adequate resources available for the treatment and support of the defendant in the community; and
(d)     whether the defendant is likely to comply with the conditions of a licence; and
(e)     other matters that the court thinks relevant.
(2)     The court cannot release a defendant under this Division, or significantly reduce the degree of supervision to which a defendant is subject unless the court -
(a)     has considered at least three reports (expert reports) each prepared by a different psychiatrist or other appropriate expert who has personally examined the defendant, on -
(i)    the mental condition of the defendant; and
(ii)the possible effects of the proposed action on the behaviour of the defendant; and
(b)     has considered the report most recently submitted to the court by the Minister under this Division; and
(c)     has considered the report on the attitudes of victims and next of kin prepared under this Division; and
(d)     is satisfied that -
(i)    the defendant’s next of kin; and
(ii)    the victim (if any) of the defendant’s conduct; and
(iii)if a victim was killed as a result of the defendant’s conduct – the next of kin of the victim,
have been given reasonable notice of the proceedings.”
On all of the evidence put before me, I am satisfied, having regard to the statutory criteria, that it is appropriate to release the defendant on licence subject to the following conditions:
1.That the defendant reside where directed by the Director of Forensic Mental Health Service (“the Director”).
2.That the defendant be under the care of the Director or a consultant psychiatrist nominated by him/her and obey any directions given to her from time to time with regard to medical and psychiatric treatment and medication, and further that she be psychiatrically reviewed on a regular basis as directed by the Director or a consultant psychiatrist nominated by him/her.
3.That the defendant continue to receive her mediation current at the date of this order as required by her consultant psychiatrist and, further, that no alteration or reduction in such medication occur without the approval of the Director or a consultant psychiatrist nominated by him/her.
4.That the defendant complies in every respect with the treatment plan prepared and in force from time to time pursuant to Section 269Q(1) and (2) of the Act.
5.That the defendant not use, possess or administer any narcotic or psychotropic drug or any drug which is not medically prescribed by a legally qualified medical practitioner, and further that any drugs which are prescribed for the defendant by a medically qualified practitioner be possessed or administered by the applicant only at prescribed or recommended dosages.
6.That the defendant be under the supervision of a probation officer from the Department of Correctional Services, and for that purpose is to report initially to the office of the Department of Correctional Services at 181 Flinders Street, Adelaide within two working days.
7.That the Director or his/her nominee upon becoming aware of any breach of the said conditions by the defendant is to inform the Director of Public Prosecutions (on behalf of the Crown) forthwith.
8.That the defendant shall be detained at James Nash House at the discretion of the Director or his/her nominee if:
(a)the defendant, to the satisfaction of the Director or his/her nominee, shall have breached any condition or conditions of this order; or
(b)the Director or his/her nominee is concerned that an action or pattern of behaviour is likely to lead to a breach of any such condition and that in the opinion of the Director or his/her nominee the defendant is in need of a level of security that cannot be provided at the Glenside Hospital;
provided that:
(c)such detention shall be for a period of not more than 14 days without further order of this court, and
(d)the Director or his/her nominee shall notify the Registrar of this court and the Attorney-General forthwith upon the detention of the defendant at James Nash House pursuant to this paragraph.
9.That without limiting the effect of Section 269P of the Act, the defendant and the Director of Public Prosecutions (on behalf of the Crown) shall be at liberty to apply at any time and from time to time as they may be advised, at short notice to the other to vary or revoke this order or seek any other order in substitution thereof.
I will make orders accordingly.

[2003] SASC 225

23 July 2003