R v Pallin - [2015] SASC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v PALLIN
[2015] SASC 22
Judgment of The Honourable Justice Sulan
23 February 2015
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - KNOWLEDGE AND UNDERSTANDING
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
Accused pleaded not guilty to the murder of her daughter on the ground of mental incompetence pursuant to s 269C of the Criminal Law Consolidation Act 1935 (SA). Trial by Judge alone. Two psychiatrists concluded that the accused was suffering from paranoid schizophrenia at the time of the alleged offence and unable to understand the wrongfulness of her actions. Accused mentally incompetent to commit the alleged offence on balance of probabilities. Prosecution and defence agree objective elements of the offence. Accused found not guilty of murder on account of mental incompetence and liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA).
Criminal Law Consolidation Act 1935 (SA) s 269C, s 269E, s 269F, referred to.

R v PALLIN
[2015] SASC 22
Criminal

SULAN J: Catherine Anne Pallin is charged with the murder of her daughter, Ayeesha, on 17 July 2013. She pleaded not guilty to the charge on the ground of mental incompetence.[1] The defendant elected to be tried by Judge alone. The parties have agreed the objective elements of the alleged offence. On 22 December 2014, I found the defendant not guilty of murder on account of mental incompetence and liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). On that day, pursuant to s 269T(2), I ordered the provision of three expert psychiatric reports. The following are my reasons.
[1] Criminal Law Consolidation Act 1935 (SA), s 269C(b).
Background
The defendant has a history of incidents concerning her mental health leading up to the alleged offence. On 26 February 2013, after displaying what police described as “paranoid and bizarre behaviour”, she was detained by police at a shop in Stirling and taken to the Royal Adelaide Hospital (“RAH”). The deceased was in the company of the defendant. The defendant was detained after attempting to abscond from the RAH with her daughter.
Between 28 February and 6 March 2013, the defendant was admitted to the Rural and Remote Ward at Glenside Hospital, having been diagnosed with a brief episode of psychosis. She was prescribed Risperidone, which resolved her paranoia. On 8 March 2013, a community mental health nurse visited the defendant and observed that she was guarded and that she mistrusted government departments. After her discharge from Glenside, the defendant ceased taking the antipsychotic medication, as she claimed it made her feel ill and did not fit with her lifestyle of “clean living”.
The defendant attended four sessions with a psychologist, Mr Johns, between 19 March 2013 and 10 July 2013. On 15 July 2013, the defendant’s general practitioner, Dr Ding, referred her to the Community Mental Health Team. An appointment was arranged for 19 July 2013.
On the morning of 17 July 2013, the defendant was at her home in Macclesfield. She was with the deceased, who was two years old. Later that day, she drove to a dirt road outside Macclesfield. She recalled having thoughts of driving into a tree because she did not want to die and “leave Ayeesha to experience the awful life”.
The defendant parked the car near a dam. She placed the deceased on the front seat. She told police that “she decided to kill her first”. The defendant hit the deceased on the head with a metal drink bottle.
The defendant took the deceased in her arms and walked into the dam. She completely immersed the deceased in water and recalled being “aware that this would end her life”. She told police that she “drowned her daughter at the dam”, and that this “was the best thing she could do to stop her pain”. The defendant said that she “knew she had to do it” to protect her daughter and “felt a huge amount of love”. She observed two motorbikes ride past in the distance, and had an overwhelming feeling that “they were bad people” which caused her to feel that she “had to do it now”. After the deceased stopped breathing, the defendant lay her on the side of the dam and was “holding her and saying goodbye to her”.
The defendant then went to a nearby property and telephoned the police. The defendant was arrested and taken to the Mt Barker Police Station. She was remanded at the Women’s Prison, before being transferred to the RAH. The defendant was diagnosed with psychosis, and at high risk of suicide or self-harm. She was transferred to the Margaret Tobin Centre on 19 July 2013, until she was granted home detention bail on 21 March 2014.
Mental incompetence
I determined to first proceed with consideration of the defendant’s mental competence.[2]
[2] Section 269E(2) of the Act.
Section 269F provides:
269F —     What happens if trial judge decides to proceed first with trial of                 defendant's mental competence to commit offence
If the trial judge decides that the defendant's mental competence to commit the offence is to be tried first, the court proceeds as follows.
A—Trial of defendant's mental competence
(1)     The court—
(a)must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental competence to commit the offence; and
(b)may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.
(2) The power to require an examination and report under subsection (1)(b) may be exercised—
(a)     on the application of the prosecution or the defence; or
(b)    if the judge considers the examination and report necessary to           prevent a possible miscarriage of justice—on the judge's own           initiative.
(3)     At the conclusion of the trial of the defendant's mental competence,                    the court must decide whether it has been established, on the balance                    of probabilities, that the defendant was at the time of the alleged   offence mentally incompetent to commit the offence and—
(a)     if so—must record a finding to that effect;
(b)     if not—must record a finding that the presumption of mental   competence has not been displaced and proceed with the trial in   the normal way.
(5)     The court may, if the prosecution and the defence agree—
(a)     dispense with, or terminate, an investigation into a defendant's   mental competence to commit an offence; and
(b)     record a finding that the defendant was mentally incompetent to   commit the offence.
Counsel for the prosecution and the defendant agreed that I should accept the reports of two psychiatrists, Dr Ferris and Dr Nelson.
Section 269C provides:
269C—Mental competence
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; or
(c) is unable to control the conduct.
Dr Ferris
Dr Megan Ferris, a consultant psychiatrist at James Nash House, reported as follows.
The defendant was 38 years of age at the time of the alleged offence. She had a normal upbringing, without any significant mental health issues. She completed Year 12 at school whilst living with her parents.
The defendant had a brief experience with recreational drugs as a youth. She experimented with marijuana between the ages of 15 and 18 years, and stopped because it made her “incredibly paranoid”. She also used ecstasy at this time and recalled a traumatic episode involving significant visual hallucinations.
The defendant described developing problems with social interaction in her early thirties, and had a constant feeling of being tired and a desire to socially isolate herself. She did not seek any medical assistance, but visited a counsellor for approximately 18 months. She described herself as being depressed during this period.
In her mid-thirties, the defendant met her partner, Bentley Sellar. She eventually permanently moved to Macclesfield with Mr Sellar in 2010, after becoming pregnant. Mr Sellar has a son from a previous relationship who was living with the defendant and himself on alternate weekends. He was 13 years of age at the time of the alleged offence.
The defendant gave birth to the deceased on 11 May 2011. She did not experience any significant mental health issues until 2013. Following the incident of psychosis at Stirling in February 2013, the defendant described experiencing “running commentary auditory hallucinations of an unknown female voice”. She did not find this distressing or seek help. Over the following months, she became increasingly paranoid about someone wanting to inflict harm on herself and the deceased. She felt that people, including her partner and her father, could read her thoughts. After returning from a trip to New South Wales in July 2013, the defendant had fears of running out of food in her home, her car being taken and her partner forcing her to eat food “laced with drugs” and “she would be forced into prostitution by him”.
Dr Ferris described the defendant’s increase in awareness about her previous psychotic episodes and the circumstances of the offending. The defendant became overwhelmingly distressed when talking about the deceased’s death for the first time and expressed extreme remorse for what had occurred. According to Dr Ferris, the defendant was no longer experiencing paranoia or perceptual disturbance.
The defendant was diagnosed immediately after the alleged offence as having experienced paranoia for a long time. The paranoia was becoming unbearable. The defendant decided that she had to kill the deceased and herself to escape from her partner. She was frustrated at being unable to commit suicide. She had stopped taking medication and ceased contact with mental health services. She also described her auditory hallucination experiences.
Dr Ding, the defendant’s general practitioner, assessed the defendant on 15 July 2013, two days before the alleged offence. He observed her as exhibiting suspected “paranoia, disorganisation and guarded behaviour” and as being “distracted with slow speech and poor concentration”. He referred her to the community mental health team.
Dr Ferris diagnosed the defendant as suffering from chronic paranoid schizophrenia, with a history of significant paranoia and bizarre delusions, perceptual disturbance and disturbance of thought.
At the time of the alleged offence, the defendant was suffering from an acute psychotic episode with “significantly impaired judgment, overwhelming paranoid ideation, bizarre delusions, perceptual distance and behavioural abnormality”. Dr Ferris concludes that “she was unable to reason with a moderate degree of sense and composure about the wrongfulness of her actions because of her acute psychotic symptoms.
Dr Nelson
Dr Allan Nelson had been overseeing the defendant’s admission at the Margaret Tobin Centre since 19 July 2013 until her release on home detention bail on 21 March 2014.
After being transferred from the RAH to the Margaret Tobin Centre on 19 July 2013, the defendant was assessed as being “acutely psychotic with prominent persecutory delusions”. She was also assessed as having “schizophrenia, paranoid type with symptoms evident since February 2013”. The defendant stated that her only escape from an inevitable future of rape and torture was to kill the deceased and kill herself. Ongoing treatment involving taking Risperidone significantly improved the defendant’s mental health since her admission at the Margaret Tobin Centre. She described her previous fear of being abused by her partner and her desire to protect the deceased. She also described previous auditory hallucinations of a motherly female voice and her belief that other people, including her partner, were reading her mind.
The defendant described an incident in February 2013, where she drove to a woman’s house in Strathalbyn with the deceased. She had met this woman at a birthday party that her partner’s son attended. She described being scared of her partner and other people in the community and feeling that she had to get away from home. The defendant was allowed to stay in a spare room. Later in the evening, she developed fear about this woman and her husband wanting to keep her at the house and she left with the deceased. About two weeks later, the defendant was taken to the RAH by police as a result of her paranoid behaviour at Stirling. The defendant described experiencing fear of her partner prior to these incidents, but that these occasions were less intense.
The defendant left the Rural and Remote Ward at Glenside Hospital in March 2013, due to her fear of the men who were present and her distrust of government institutions. She described remaining afraid of her partner, despite these fears subsiding during her admission. Thereafter, she ceased taking Risperidone.
The defendant described the intermittent nature of her feelings of fear towards people close to her. In addition to her partner, they included her parents and her partner’s parents. She flew to Sydney with the deceased at some point during this period to be with her parents, and began feeling that they wanted to detain her. As a result, she stayed with friends in the Blue Mountains until she experienced the same fears and travelled back to Macclesfield.
Dr Nelson inquired about the defendant having thoughts of killing herself. The defendant described having these thoughts while she was in high school and during her young adult years, but not resulting in any attempts on her own life. She had not thought about killing herself in relation to her fear of her partner prior to 17 July 2013. She also stated that her thoughts of driving into a tree while driving between Mt Barker and Macclesfield was the first time she had any thought of harming the deceased.
Dr Nelson diagnosed the defendant with paranoid schizophrenia. He is of the opinion that she was acutely psychotic at the time of the alleged offence. The defendant was acutely psychotic prior to her admission to hospital in March 2013. Dr Nelson is further of the opinion that the defendant “appeared to be so strongly affected by her delusional beliefs that she would have been unable to reasonably discriminate the legal and moral wrongfulness of her actions”.
Finding
I am satisfied that, at the time of the alleged offence, the defendant was suffering from an acute psychotic episode and, as a consequence, did not know that her conduct was wrong. I accept the psychiatrists’ assessments that the defendant understood the nature and quality of her conduct and she was able to control her conduct. The defendant described making the decision to kill her deceased and knew that holding her under water would kill her. These actions were voluntary and deliberate. Nevertheless, the defendant believed that killing the deceased was the right thing to do and did not appreciate the wrongfulness of her conduct, according to the standards accepted by reasonable people. She believed that her partner and others would inevitably harm the deceased and herself. She was delusional at the time. The defendant was clearly psychotic at the time she drowned her daughter.
The defendant made no attempt to cover up her actions. Her conduct is evidence which supports the fact that, in her mind, she had done nothing wrong. She left the body of the deceased on the bank of the dam and attended the neighbouring property to contact police and explain what had occurred, based on her delusional beliefs.
I accept the reports of the psychiatrists and their conclusions. I conclude that the defendant was suffering from a mental illness at the time she killed her daughter. In consequence of that mental illness, the defendant did not know her conduct was wrong. I find that, on the balance of probabilities, the defendant was mentally incompetent at the time she caused the deceased’s death.
Objective elements
Section 269F provides:
B—Trial of objective elements of offence
(1)     If the court records a finding that the defendant was mentally incompetent            to commit the offence, the court must hear evidence and representations put              to the court by the prosecution and the defence relevant to the question              whether the court should find that the objective elements of the offence are            established.
(2)     If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt, the court must record a finding that the objective elements of the offence are established.
(3)     If the court finds that the objective elements of the offence are established, the court must find the defendant not guilty of the offence but declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
(4)     On the trial of the objective elements of an offence, the court is to exclude from consideration any question of whether the defendant's conduct is defensible.
Counsel for the prosecution and the defendant have agreed that the elements of murder are established. The factual basis for the objective elements is contained in the declarations submitted by the prosecution, which are not disputed by the defendant. I attach an annexure to these reasons with the list of witnesses whose declarations I have considered. The objective elements of murder are that the act or acts of the defendant caused the death of the deceased.
In a trial concerning the issue of mental incompetence, the subjective intention of the defendant and whether he or she acted without lawful excuse are determined as part of the question of mental competence.
Turning to the objective elements of murder, I am satisfied beyond reasonable doubt that the accused caused the death of the deceased on the evening of 17 July 2013.
The defendant told police and psychiatrists that she deliberately hit the deceased on the head with a metal drink bottle, carried her into the dam and held her under water. She understood that these actions would kill the deceased.
I am satisfied that the objective elements of murder have been established beyond reasonable doubt.
I conclude that the accused is not guilty of murder on the ground of mental incompetence. She is, therefore, liable to supervision under Part 8A of the Act.[3]
[3] 269F
...
B—Trial of objective elements of offence
(1)If the court records a finding that the defendant was mentally incompetent to commit the offence, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established.
(2) If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt, the court must record a finding that the objective elements of the offence are established.
(3)If the court finds that the objective elements of the offence are established, the court must find the defendant not guilty of the offence but declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.

Annexure – list of witnesses who provided declarations
1.Colin Bartle dated 19 July 2013
2.Ian Campbell dated 17 June 2014
3.Kim Cooper dated 26 June 2014
4.Daniel Cresp, dated 23 September 2013
5.Ian Flotman, dated 14 September 2013
6.Sonya Galbraith, dated 19 August 2013
7.Jacqueline Ludgate, dated 25 July 2013
8.Vincent Mitchell, dated 26 September 2013
9.Kristie Murphy, dated 1 August 2014
10.Beatrice Panne, dated 15 May 2014
11.Christiana Sprott, dated 19 June 2014
12.Tim Stacey, dated 17 September 2013