R v Papley

[2017] NSWSC 1068

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	R v Papley [2017] NSWSC 1068
Hearing dates:	17 July – 14 August 2017
Decision date:	18 August 2017
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Not guilty by reason of mental illness
Catchwords:	CRIMINAL LAW – murder – trial by judge alone – alleged deceased was accused’s infant daughter – child not seen since 2000 or 2001 – no sign of life from extensive police searches – circumstantial case – lies evidencing consciousness of guilt – satisfied child is deceased – satisfied deliberate act/omission causing the child’s death   CRIMINAL LAW – defence of mental illness – history of serious mental illness – expert evidence unanimous that defence available – schizophrenia – accused untreated during period child disappeared – chronic persecutory delusions involving the child, accused’s mother and authorities – not guilty by reason of mental illness
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) s 15A Criminal Procedure Act 1986 (NSW) ss 132, 132A Evidence Act 1995 (NSW) s 89 Mental Health (Forensic Provisions) Act 1990 (NSW) s 38
Cases Cited:	Hawkins v The Queen [1994] HCA 28; 179 CLR 500 Lane v R [2013] NSWCCA 317; 241 A Crim R 321 McNaghten's Case (1843) Cl and F 200; 8 ER 718 R v Minani [2005] NSWCCA 226; 63 NSWLR 490 R v PL [2009] NSWCCA 256; 199 A Crim R 199 Sodeman v The King [1936] HCA 75; 55 CLR 192 Stapleton v The Queen [1952] HCA 56; 86 CLR 358 The King v Porter [1933] HCA 1; 55 CLR 182 The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308
Category:	Principal judgment
Parties:	Regina Karen Papley
Representation:	Counsel: Mr L Carr (Crown) Mr T Gartelmann SC (Accused)   Solicitors: Solicitor for Public Prosecutions Rice More & Gibson
File Number(s):	2016/82780

Judgment

1. HIS HONOUR: Karen Papley ("the accused") was arraigned before me on Tuesday 18 July 2017 and entered a plea of not guilty to the following charge:

Between 25 December 2000 and 25 December 2001 at an unknown place in the State of New South Wales did murder Astra Papley

2. The alleged victim was the accused's daughter. She was aged between 16 and 28 months in the period averred in the indictment. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits the publication or broadcasting of anything that would identify her. Accordingly, the published version of this judgment will identify the accused, her daughter and other family members by pseudonyms.

3. This trial has been conducted without a jury. The accused applied for an order that she be tried by a judge alone. The Crown consented to the application and to leave being granted for it being brought out of time. I granted both leave and the application, and made a trial by judge order: ss 132 and 132A of the Criminal Procedure Act 1986 (NSW).

Some legal propositions

Onus and standard of proof

4. A fundamental feature of a criminal trial is that the Crown carries the burden of proving the guilt of the accused to the standard of beyond reasonable doubt. The accused has no obligation of proving anything.

Exercise of the right to silence

5. The accused did not give evidence. She was not required to. The fact that she did not do so has no significance whatsoever. I have put the fact that she did not give evidence completely aside. The same applies to the fact that she declined to be interviewed by police following her arrest.

Essential facts to be proven

6. In order to prove the charge of murder, it is necessary for the Crown to prove beyond reasonable doubt that a deliberate act (or omission) of the accused caused the death of the deceased and that such act (or omission) was carried out with an intention to either kill or cause really serious bodily harm or with reckless indifference to life. The latter means carrying out a deliberate act (or omission) which caused death with foresight of the probability that death would result.

7. Permeating this entire case is an issue about the accused suffering from a mental illness. She has raised the defence of mental illness. Accordingly, if the Crown is able to prove beyond reasonable doubt that the child is deceased and that her death was caused by a deliberate act (or omission) of the accused, it will be necessary to consider whether the accused is criminally responsible before considering, if necessary, whether the act (or omission) was accompanied by one of the mental states that I have just referred to that are necessary to establish the charge of murder. I will say more about this later.

Circumstantial evidence

8. The Crown does not rely upon any direct evidence to establish that the accused committed an act (or omission) which caused death or that, assuming there was such an act (or omission), it was accompanied by the accused having one of the requisite mental states for murder. Indeed, there is no direct evidence that the child is deceased. The Crown case is entirely circumstantial.

9. The High Court of Australia recently summarised the correct approach to be taken in a circumstantial evidence case in The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 at 323-324:

"[46] The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen [(1975) 133 CLR 82 at 104], Gibbs, Stephen and Mason JJ said:

'When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen.'

[47] For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal." (Emphasis in original; some footnotes omitted)

10. In Lane v R [2013] NSWCCA 317; 241 A Crim R 321, the Court of Criminal Appeal (Bathurst CJ, Simpson and Adamson JJ) spoke of the "very real" distinction between drawing an inference from proven facts and engaging in speculation:

"[109] … In Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262, Spigelman CJ considered this very question. He acknowledged that it is often difficult to distinguish between permissible inference and conjecture. Quoting from Jones v Great Western Railway Co (1930) 144 LT 194, his Honour adopted a definition of inference as 'a deduction from the evidence' which, if reasonable, may have the validity of legal proof.

[110] He referred also to Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, quoting as follows:

'Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.'

Spigelman CJ stated the test as:

'... whether, on the basis of the primary facts, it is reasonable to draw the inference.'

To similar effect were observations of Gibbs, Stephen and Mason JJ in Barca v The Queen [1975] HCA 42; 133 CLR 82 at 104-105."

11. In The Queen v Baden-Clay it was said (at 326 [55]) to be erroneous for the Queensland Court of Appeal to have concluded that the respondent was guilty of manslaughter rather than murder by engaging in "mere speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence".

Lies

12. The Crown asserts that the accused has told lies about what has happened to her daughter. In this respect it relies upon certain evidence given by the accused in the Toronto Children’s Court on 4 March 2004. The Crown says that such lies were the product of "consciousness of guilt".

13. A lie is to say something untrue, knowing at the time of saying it that it is untrue. A lie may be taken into account as evidence of a person’s guilt if it meets two further criteria. First, it must relate to some significant circumstance or event connected with the alleged offence. Secondly, it must have been told because the person feared that telling the truth might reveal his or her guilt, or implicate him or her in the commission of the alleged offence.

14. Care is required on this issue. It has to be borne in mind that people do not always act rationally and telling a lie sometimes may be explained in other ways. The person may have a reason to lie apart from trying to conceal guilt. In this case, the issue of the accused's mental illness is something that needs to be considered.

The accused's life history and the emergence of a mental illness

15. The following is an account of the accused's life. It will be seen that it was quite unremarkable until changes began to occur around the mid-1990s. In hindsight, it seems to be the case that this was the period in which a mental illness began to emerge.

16. Some of the events to be recounted can be assigned to a date or at least a particular year or part of a year. However, given many witnesses were solely dependent upon their memory, the time when some events occurred is, at best, an estimate. Further, in relation to some matters, the period when a witness thought something occurred can be shown to be wrong by reference to the evidence of other witnesses but the occurrence of the event could be accepted nonetheless.

Early years

17. The accused was born in 1972 and initially lived at Rutherford with her parents. Her father passed away in February 1974.

18. In about March 1974 the accused and her mother, Hilary Papley, moved to the Scone-Aberdeen district in the Hunter Valley and lived in a rented cottage on a property called "Russley" near Aberdeen. Mrs Papley worked full-time and the accused was cared for by Roma and Keith Brabant who she referred to as "Nanna" and "Poppy". The only other person to care for the accused was a woman who worked as a matron at the Scott Memorial Hospital in Scone but that was not often.

19. In 1978 Mrs Papley and the accused moved to Evans Head on the far north coast where the accused started school. In 1981 they moved to Beresfield, near Newcastle, where the accused completed her primary schooling. Her Year 6 teacher described her as fairly quiet and a bit lonely but not troublesome. She started her secondary education at a religious college at Waratah.

20. In 1986 Mrs Papley and the accused moved to Gorokan on the Central Coast. There she continued secondary schooling at Gorokan High School. The following year they moved to Broken Hill as a result of Mrs Papley having re-established contact with a daughter born to her in 1963 but who had been adopted out. The accused enrolled at Broken Hill High School.

First three children

21. The accused became pregnant in 1988 when she was in Year 10. Her first child, a son, was born in mid-1989. Another son was born to her in early 1991.

22. Mrs Papley returned to live on the Central Coast in 1992 and the accused and her two sons followed in early 1993. The accused was again pregnant and gave birth to her third son in mid-1993. Mrs Papley looked after the boys after work and on weekends.

23. Because of things said by the accused about her mother in later years it is of some significance to note that a friend of them both, Raeleen Gannon, described the pair as having a very close, good relationship at this time.

The onset of mental illness?

24. In 1993 to 1994 the accused's behaviour and demeanour began to change. The father of one of the accused's school friends, Allan Hanlon, observed that she was interested in psychic events, UFOs and Tarot cards. Ms Gannon observed that aspects of the accused's lifestyle were unusual and that her demeanour had changed. In 1995 there was an occasion when Ms Gannon went to her home but the accused would not answer the knock on the door. Eventually she did open the door but then, in a monotone voice, told Ms Gannon that their friendship was over and to "go away". Ms Gannon was not given any explanation for this unexpected event.

25. It was in 1995, or perhaps 1996, that Mrs Papley became concerned about the accused's elder two sons not being properly fed. The accused's behaviour was changing. For example, she would ask Mrs Papley to come around to her home and when she arrived the accused would not let her in. In 1996 Mrs Papley noticed that the accused's artwork was "very dark" and her behaviour was becoming "bizarre". In hindsight, she considered that this was consistent with mental illness.

26. Michelle Hanlon, who lived with the accused for a time, gave evidence that they were both using cannabis; the accused increasingly so. Other evidence suggested that she was also using magic mushrooms. Ms Hanlon noticed a change in the accused's behaviour over time. She said she became very quiet and was not as "bubbly" anymore; she was melancholy and had "lost her spark". Ms Hanlon introduced the accused to "white witchcraft".

Abandonment of the three sons

27. On 7 November 1996 Mrs Papley was at work when she received a phone call from the accused who said, "Mum, go to the post-box". Mrs Papley went to the post office and in the post-box that they shared she found a letter from the accused and her house keys. The letter gave her permission to have the children. Mrs Papley found the elder two boys at their school and pre-school but the youngest child (who was then aged 3) was not found until a neighbour brought him home. The accused had disappeared.

28. Mrs Papley moved into the house. It was found to be a mess and there was no food. About a week later it emerged that the accused was staying with a friend from school in Victoria.

29. In cross-examination Ms Gannon spoke of the changes in the accused's behaviour and mood and how she was becoming more erratic and paranoid in the period leading up to the abandonment of her children.

30. On 20 December 1996 the accused returned from Victoria. She spoke of plans to move with the children to Victoria. After some conversation, she agreed that the boys would remain in the care of Mrs Papley. They attended Wyong Court that day and consent orders were made to the effect that the children would remain with Mrs Papley. The accused then left.

Further deterioration and admission to psychiatric facilities

31. The accused was admitted to the Mandala Clinic at Gosford Hospital on 4 January 1997 as an involuntary patient because of there being a significant risk of suicide. It was noted that she was experiencing a difficult social situation; she had three young children and had recently lost custody to her mother. On the day of admission she had stood at a cliff face for a few hours contemplating suicide. There was a diagnosis made of Adjustment Disorder with Depressed Mood. Her condition was thought to have improved and she was discharged on 6 January 1997. No medication was prescribed.

32. At some point (the evidence is imprecise) the accused instituted legal proceedings to regain custody of her sons. However, the result was that Mrs Papley was granted custody and the three boys remained in her care thereafter.

33. At some time during 1997, Mrs Papley was given to understand that the accused intended to take the youngest boy and so Mrs Papley moved away. However, she returned to the Central Coast on occasions to allow access visits by the accused.

34. Friends with whom the accused lived spoke of her continued use of cannabis on a regular basis and occasional use of LSD. There are references to her going into “shutdown mode” when she either would not talk or would talk about flashing lights down at the lake and aliens coming to get her. She also said various things indicative of a level of paranoia. She once disappeared after an apparent LSD “trip” and returned three days later dishevelled and speaking of having been on a cliff face waiting for aliens. She also spoke of a “wolf man” who she was scared of. She would have to find her chosen man, a black man, and he would help her have a little girl. She would have to go to a hill and if she arrived there at the same time as the wolf man she would have to sacrifice the girl by slitting her throat to keep the wolf man busy so she could get to the alien ship. The accused also mentioned that there was a "hit list" with the names of all of her friends and family who the wolf man was chasing.

35. Despite all of this, according to Tammy Bourke with whom the accused lived in 1997, the accused appeared to remain loving and caring towards her sons on occasions when she had access visits. Mrs Papley said that the access visits ceased in early 1998 at the accused's request.

36. The accused was admitted to the Mandala Clinic three times in November-December 1997. On the first occasion she had been brought in by police to the Wyong Hospital Accident and Emergency Department after she had been found brandishing a knife in a public street.

37. On each occasion of admission she was often mute. She was prescribed Risperidone on the first occasion but was said to be non-compliant with this medication when admitted on the second and third occasions. There is mention in the discharge summaries of her having spoken of bizarre thoughts such as of aliens and having special powers. There is also reference to auditory and visual hallucinations as well as paranoid delusions. It is not clear whether the follow-up that was supposed to occur after each discharge was provided or whether she was uncooperative. Depot injections of Flupenthixol were prescribed and a community treatment order was made on the last discharge.

38. Diagnoses made in these admissions were “? Substance Induced Psychosis” and “? Schizophreniform Psychosis”, “Schizophrenia”, and “Schizophrenia – Possibly Marijuana Exacerbated”.

39. There was an occasion when Mrs Papley came across the accused on a beach near Toukley when the accused said, "You'd better be careful now I'm a high priestess". She was wearing flowing robes and had a witchcraft symbol, a pentagram. Mrs Papley did not see her daughter again until some court proceedings in 2004.

40. Jessie Ryan lived with the accused for a time in 1998. The accused continued with cannabis use. Ms Ryan said that she had some strange eating habits like eating raw meat and she spoke of aliens coming and speaking to her and of a wolf man who came to her when she went to a particular location by the lake to paint.

41. There was evidence to the effect that the accused told people that she had, or might develop, cervical cancer and could die as a result. She became pregnant in late 1998 and there was some talk about the possibility of the child being adopted by Ms Ryan's mother.

Move to Scone

42. Sometime in early 1999 the accused moved to Scone, the area where she had spent her early childhood years. On 9 March 1999 she was brought into the Scott Memorial Hospital by police. She was dishevelled and uncommunicative. Sandra Brabant, the daughter of Roma and Keith Brabant who had cared for the accused as an infant, was the nurse assigned to care for this unidentified patient. When Ms Brabant went into the accused's room she saw an exercise book on a table with a photograph stuck to the page of Sandra, her mother and the accused at Sandra's wedding in 1977. Ms Brabant said “hello” but received no response. She said, "It was just blank. Nothing. No recognition whatsoever."

42. The accused was transferred to the Maitland Hospital. She was noted to be mute and communicating only by gestures. After a few days she was transferred to the Mandala Clinic with a diagnosis of Schizophrenia and possible drug induced psychosis.

43. The Mandala Clinic discharge summary records that the accused had two previous admissions there (there had in fact been four). It noted that on her last discharge a community treatment order was made and depot injections of Flupenthixol had been prescribed but "it doesn't appear that any follow up had been arranged" and "the patient admitted she had been non-compliant with her medication". The accused had said that she wished to settle in Scone where she had spent some of her childhood. She would organise her own psychiatric follow up there. She was not prescribed any medication on discharge on 26 March 1999. The diagnosis recorded was "Schizophrenia and pregnancy".

44. Ben Turner, who had been in a relationship with the accused in the recent past, visited her while she was in Mandala. He said that she indicated by pointing gestures that she was pregnant and that he was the father, but she was otherwise uncommunicative.

45. The accused took up a modest unit in Mount Street, Scone which she rented from Maurice Seymour (now deceased). He and his wife, Valerie, came to know the accused quite well. Observations of her behaviour were that it was "very strange"; for example, she spoke of hearing voices in the ceiling.

46. The accused attended the Red Cross store regularly, usually on a Friday, where she provided assistance to the volunteer workers. It became evident to them that she had some mental health issues.

47. In May 1999 the accused was referred by her general practitioner to a social worker, Susan Gould. The referral form included that the accused was 31 weeks pregnant and was looking at the possibility of adoption. She had arrived in Scone from Byron Bay and she had three children who were in the care of her mother who was in a cult.

48. Ms Gould's notes included that the accused had had no contact with her three boys for 18 months and was unsure of their whereabouts. She had been hospitalised for depression and her mother had instigated custody proceedings; she had been deceived by her mother into signing paperwork in relation to this.

49. It is of significance that Ms Gould's notes also included that the accused was "adamant that she does not want her mother to have any contact with the baby she is pregnant with". She was not absolutely sure who the father was and did not want to be a single parent again. She wanted what was best for the baby and was frightened about what may happen if she became unwell or died. She was "wanting to be sure her mother could not intervene". She was considering adoption and wondered if this might be best for the baby.

50. Ms Gould undertook to make some inquiries about adoption procedures with the Department of Community Services. An appointment a fortnight later was cancelled by the accused. On 29 June 1999 there was a discussion by telephone in which Ms Gould provided the accused with some information about adoption. There was further contact by telephone on 9 August when the accused indicated she was still considering adoption.

51. Mr Turner accepted an invitation to visit the accused in Scone. He said that the accused appeared to be looking forward to having the baby but also said, "It's all right, if you don't want to be in the baby's life, I have a nice family which I will adopt her out to".

52. The accused was admitted to hospital in Scone on 30 June and remained until 8 July 1999. The notes are not very clear but it can be gleaned that the cause of the admission was "acute anxiety and feeling generally unwell". The diagnosis recorded was "Schizoaffective Disorder" and "Pregnancy".

53. Bronwyn Hamilton, a mental health nurse, saw the accused during this admission. She said that the accused had displayed some paranoid behaviour on admission, saying that she was possibly being poisoned. Ms Hamilton was aware of the previous admissions to the Mandala Clinic and Maitland Hospital. She considered that there were no current symptoms of mental illness; just vague paranoia. The accused declined the offer of mental health follow up after discharge but Ms Hamilton understood that the accused remained under the care of her general practitioner.

Astra is born

55. The accused was admitted to hospital on 17 August 1999 and gave birth to Astra that day. On her discharge it was noted that there was "no evidence of psychosis at discharge or during admission". One of the Red Cross volunteer workers, Margaret Hayne, visited the accused in hospital and said that she "seemed quite happy about having had a little girl".

56. The accused returned to live in the unit in Mount Street and resumed her attendances at the Red Cross store. One of the workers, the late Ms Aileen Day, said that she "always had Astra looking absolutely beautiful and well dressed". Ms Day also spent time with the accused and her baby at the Mount Street unit. She said that the accused spoke of changing her name to "Rainbow" and Astra's name to "some way out name". The accused also spoke about a wolf man and that she was on a hill under a tree. Ms Day could not make sense of this.

57. Descriptions from various other witnesses were to similar effect. Astra was a smiling, beautiful baby, always clean and well fed and the accused behaved like a normal new mother. She was often seen out in the township with Astra in a pram. The accused attended to having immunisations administered on 12 October 1999 and on 11 January, 25 February and 18 October 2000. (Entries in the child's Personal Health Record, or "blue book", cease at that point.)

58. As time went on people began to observe a deterioration. The Red Cross president, Ms Robin Walton, spoke of an occasion when she went to the Mount Street unit and found the accused in a "black mood"; she was uncommunicative and dishevelled. The accused said she had been hypnotised to stop these moods coming into her mind. The windows of the unit were covered with sheets or the like. The accused spoke of being scared of Astra being taken by welfare. In cross-examination, Ms Walton agreed that the accused had said that she was abused when she was about three years of age and that she had been hypnotised to forget what had happened. She thought the abuser was her mother but it may have been her stepmother.

59. Mr Turner continued to visit the accused after the birth. He said that the accused was a gentle, normal mum. The baby seemed healthy and happy. There came a time, however, when the accused said, "I'm not coping now, do you want to take the baby?" Mr Turner contemplated taking and caring for the baby. A relative advised him to have a DNA paternity test carried out and he mentioned this to the accused in a telephone conversation. She seemed to be agreeable. However, shortly before he was due to come up to Scone he spoke on the phone to the accused who said, "The baby's not yours, I made a mistake at the time, it's someone else's". (Subsequent DNA testing confirmed that this was true.)

60. Mr Turner went up to Scone anyway but Astra was not there. The accused told him that she had given the baby to a couple who had a couple of kids and lived on a farm. With the assumption that this was somewhere in the Scone area, he tried a number of times to get directions from the accused so that he could go and see the child but to no avail. (When this event occurred is not at all clear; Mr Turner was quite open about the fact that his memory was "a bit scratchy".)

Department of Community Services and Community Mental Health Team involvement

61. On 31 July 2000 the Department of Community Services ("Community Services") received a notification that when a person visited the accused on 28 July she appeared distressed and delusional. The person who made the notification was told by the accused that she would not seek professional help "as all they do is drug me". The notifier said that the accused was projecting anger and frustration onto Astra; the child was crying and the accused lent over, her hand went down but she stopped and did not strike the child.

62. The accused had told the notifier that her mother, who had care of three of her children, was not her biological mother. Her biological mother had been killed in a motor vehicle accident and her children had been placed with foster parents. (The accused was said to have become "angrier and angrier" as she spoke of her background.) The accused said that her foster mother had sold her off and she had been sexually assaulted as a child and she feared that this woman (apparently a reference to Mrs Papley) would do the same to Astra. The accused said, "My daughter's blood will be on your hands when somebody rapes her". The accused was also reported to have exhibited paranoia during the conversation, stating things such as "Sshh, sshh, stop talking. There's two people in the car behind us that might hear us."

63. Christine Kenah, (then, Christine Anderson), a Community Services casework specialist, visited the accused on 1 August 2000. Ms Kenah found the accused was co-operative and engaging and she formed the view that Astra was developmentally appropriate for her age. The accused said she had left a violent relationship. She had an interest in white witch practices. She said she had been the victim of ritualistic sexual abuse in her childhood which included her being hypnotised and drugged. She was not on any medication. She spoke of having been poisoned. Someone was trying to frighten her and she was fearful that someone was trying to hurt her and Astra. She also said that she was hearing voices at her window whispering that they were going to get her and Astra. However, Ms Kenah had no concerns about the accused's interaction with Astra. She recommended that the child was safe and could remain in the home but further investigations were suggested.

64. Departmental officers made other inquiries, including of a Dr St Clair at Gosford Hospital. He had last seen the accused and Astra when the child was about four weeks of age. He described the illness the accused suffered from at that time as something like schizophrenia with elements of paranoia. He said the accused "could get mixed up and aggressive".

65. On 9 August 2000 there was another home visit and this time Ms Kenah was accompanied by Andrew Morris and Bronwyn Hamilton from the Hunter New England Community Mental Health Team. The accused was described as welcoming and Astra as cheerful, smiling and dressed appropriately. The consensus was that the accused was unusual but there was no concern about risk to herself or to others.

66. Ms Kenah recorded in her contemporaneous notes that the accused said that Mrs Papley was not her real mother. She had hypnotised her and, sold her into child prostitution. She had been drugged with sleeping tablets at places such as a church.

67. Mr Morris' evidence was to the effect that prior to the visit he had knowledge of the accused's history from the Mandala Clinic. He saw no indication of any mental health issue such as paranoia or psychosis. The accused said she was in a "happy" mood. There were no signs of formal thought disorder or ideas of reference. He made a note, "Paranoid re previous partner finding, contacting Karen (previous harassment from same)". From memory he thought this was a concern about her ex-partner finding her in Scone, which he thought was quite reasonable. The accused denied any visual or auditory phenomena such as hearing voices. She had good orientation for time, place and person and her judgment was intact. She denied any thoughts of harming herself or others.

68. Mr Morris concluded by recording, "No current need for intervention" and "Follow-up Department of Community Services. Not concerned re baby's health." The accused was given a card with details of the Community Mental Health Team and invited to make contact if she wished.

69. Mr Morris could not recall being aware of the detail of the original notification to Community Services. He was unaware of the first visit made by Ms Kenah on 1 August 2000. In the end, his view was that "there were no concerns related to the neglect or safety or harm with the child".

70. In cross-examination, Mr Morris said that he had no recollection of the accused talking about being hypnotised as a child; saying her mother had sold her as a child; or having been subjected to child prostitution.

"Q. If those things had been said, would they have necessarily caused you any concern?

A. Absolutely."

71. In re-examination he explained that if he had heard of such things, it would ring "bells of possible past abuse, I guess, which may put her mental state at risk, I guess". The evidence continued:

"Q. Any other bells apart from she may have been abused as a child?

A. No.

Q. Does that factor into harm?

A. Not that – not a lot – I guess it could.

Q. And if it could factor into harm, factor into harm of herself, others?

A. I guess it could, yep.

Q. And of course Astra?

A. Possibly, yeah."

72. Ms Hamilton was similarly unconcerned about the accused presenting a risk to herself, her child or others.

73. Ms Kenah made another visit to the accused on 15 August 2000 and on this occasion she was accompanied by Ms Wendy Wilson, who now occupies a senior position within the Department of Family and Community Services but who at the time was a caseworker at the Muswellbrook Community Service Centre. On this occasion, both Ms Wilson and Ms Kenah took the view that Astra was safe, well and being cared for appropriately. There were no concerns in relation to the safety of the accused or Astra.

74. With the benefit of hindsight, an eminent forensic psychiatrist (Dr Olav Nielssen) described this missed opportunity for intervention as "tragic". He explained:

"DOCS have done a home visit and they’ve come back the following week with a mental health worker and then as I understand it, have interviewed again the following week, but despite unearthing evidence of acute mental illness, there’s been no intervention to initiate treatment whilst the child was still alive."

A proposal to adopt Astra

75. Around the same time as the Community Services and Community Mental Health Team visits, the accused raised with the late Mr Maurice Seymour and his wife Valerie the possibility of Astra being adopted by an appropriate couple. She explained that she was concerned about having cancer and the prospect of dying. Their daughter, Ms Janice Seymour, and son-in-law, Mr Mark Burns, were trying to have a child and they came up from Melbourne to discuss the possibility of adoption with the accused.

76. Janice Seymour recalled the accused talking about her three boys being taken by Community Services and now being cared for by her mother. She did not want the same thing to happen to Astra so she was trying to arrange a family for Astra by herself. The couple observed that Astra was clean, well-dressed and appeared well fed and cared for. Ms Seymour spoke of the affection apparent between the accused and Astra.

77. In the end, when Ms Seymour telephoned the accused about a week later she was told by the accused that she no longer wanted to proceed with the adoption. Before coming up from Melbourne to meet with the accused, Mr Burns had sought legal advice about the adoption process. There is a suggestion that the accused may have been put off by the prospect of a formal adoption; her preference being to do it without official vetting and authorisation. That is an available inference but the evidence is not sufficiently clear.

Astra goes missing

78. The late Ms Aileen Day said in a statement that she last saw Astra at the Red Cross store when the child was aged about 15 months. (Ms Day also said it was in early 2001 but the assessment of the child's age appears to be more reliable and that would make it in about November 2000.) Ms Day said that Astra was picking up toys from the shelves and the accused "got a little angry with her". The accused said, "I'm going to have to do something about her because I can't cope".

79. The accused and Astra were invited to the home of Mr and Mrs Seymour on Christmas Day 2000. There are some witnesses who claim to have seen Astra after that, but there is the difficulty of accurate recollection after such a long passage of time.

80. The Red Cross store closed for the Christmas-New Year period and re-opened at around the end of January 2001. The accused continued to call in after it re-opened but without Astra. She told one of the volunteers, Margaret Hayne, that "she had given Astra to friends but that she could see her whenever she wanted". When asked where Astra was, the accused "just said she was with friends; she'd given her to friends". Ms Hayne also said that the accused continued obtaining little girls clothes; she assumed that she was taking them to wherever Astra was. But whenever the accused went away, she never spoke of having seen Astra and never returned with any photographs

81. Other volunteers at the Red Cross store gave similar evidence. Barbara Mitchell said that she last saw Astra at the store just before the Christmas closing. (She said this was in 2001 but I am satisfied it was 2000.) The accused said "Goodbye and happy Christmas". She also said that she "thought she might leave her there". (She was referring to Astra but there is no evidence as to where she was referring.) She said "she would leave her there to give Astra a better life; she would be looked after better". When the store re-opened in the New Year the accused came in without Astra and when she was asked where Astra was she said, "She's in a better place; she's looked after better than I can look after her".

82. Aileen Day gave evidence at the Coroners Court that the accused had said that the people who were looking after Astra were friends of hers; they were comfortably off; they were bringing Astra up as their own daughter and she was happy. However the accused would not tell anyone where they were because she thought Community Services would take Astra away.

83. The accused told Valerie Seymour that she had lent the child to someone out of town and those people were looking after her until the accused "pulled herself together". She said, "I'm getting her back at Easter". Later the accused said "something sort of happened and she wasn't getting her back until a certain thing, and then we were told that the people that she'd … given her to were sort of moving away and she appeared to be quite upset about it". Subsequently, the accused spoke of these people moving away and she would get Astra back at a certain time. Then she said that the people were moving to the Northern Territory "and she appeared to be sort of quite upset about that, the fact that she was going to be away quite a while". In about September-October 2001 the accused told Mr Seymour that she would be getting Astra back by Christmas but, Mrs Seymour said, nothing happened.

84. A number of witnesses provided evidence to the effect that the accused would often go away for periods of time. It was generally understood that she was visiting the northern coastal area of New South Wales, and Byron Bay in particular. People assumed, or were given by the accused to understand, that she was visiting Astra. However, no-one ever saw her return with photographs of the child or items such as drawings she may have made.

85. The accused told Carmel Waters, one of the Red Cross volunteers, that she had given Astra to an elderly couple (or a lovely couple according to Ms Waters' evidence at a Coronial inquest) although she did not say why, or where this couple were. The accused was sometimes asked where Astra was but she was vague; Darwin might have been mentioned on one such occasion. Ms Waters asked how Astra was going at school and the accused replied, "Yes, yes, she's doing all right at school".

86. The accused moved out of the Mount Street unit in late 2001 and moved into a house in Bingle Street with Mr Paul Newbold. She did not have a child with her. On 14 January 2002 she moved to a house on a cattle grazing property, "Woodlands", at Kars Springs, about 40km west of Scone. She lived there until 20 March 2008. The managing agent, Ms Jenny Dawson, said in a statement that the accused "lived quite an alternative lifestyle" and said that she dressed in "a hippy way". The premises were always clean and tidy when Ms Dawson conducted inspections. Some days when the accused came into the real estate agent's office she would make sense and on other days she would be "off with the pixies".

78. Ms Dawson observed a child's cot, children's clothes and other paraphernalia in a room at Woodlands but she never saw a child there.

79. A neighbour, Trevor Pike, spent some time with the accused and he helped in a variety of ways such as with shopping and giving her lifts into town. He did not see any children's items in the house prior to 2003. The accused told him that Astra was being looked after by somebody else. She spoke of going to see her but she never said where. Mr Pike would give her a lift to the railway station and he assumed she was travelling to the north coast. She would be away for periods of up to a week but she never returned with anything concerning Astra such as photographs. She never spoke of having seen her; all he could recall was her speaking of going to see her.

80. Mr Pike recalled a conversation in 2002 when the accused had told him that Astra was a twin and someone had taken the other one off her. She also said that she had one twin sitting on her hip inside her.

81. Mr Pike also recalled that the accused did not get on with her mother; she did not trust her and blamed her for things that had happened during her childhood. She spoke of having been drugged and sold to people.

82. Slayde Holmes lived with the accused for a while shortly after she moved to Kars Springs. They both smoked cannabis and the accused also used magic mushrooms. He gave evidence of strange behaviours; she accused him of poisoning her and she spoke of witchcraft. Her behaviour became "really quite weird" to a degree that prompted him to terminate the relationship.

83. An article appeared in the Scone Advocate about the missing child, Astra. This prompted some people to ask the accused about Astra's whereabouts but they all received similar responses.

84. Brian Knight told her about the article and offered to drive her into town to sort it out, rather than having people think that she had harmed her baby. With a blank facial expression, she replied, "It's not that easy". On a later occasion, she told Mr Knight that "she's with a family and she's safe".

85. Mary Knight said that whenever the topic of Astra was raised, the accused would turn the conversation around to her mother and spoke of her involvement in a satanic cult and being involved in sexual activities within a church involving children. The accused told Ms Knight that she had a fear of Astra going to her mother and said she was "safe with a good family".

86. Leonie Wright was told by the accused that her mother had custody of some of her children and described her mother as not being nice to her when she was a child (she drugged her and sold her for sex with older men). She also said that Astra had a new identity and was with another family to keep her safe from her mother. She said the child was "up north", somewhere like Byron Bay.

When did Astra "disappear"?

96. It would seem quite likely that 25 December 2000 was the last time any witness saw the child. Senior counsel for the accused submitted that the evidence supported a conclusion that Astra left the accused's care between late December 2000 and late January 2001. That seems to be highly likely.

97. A number of the Scone Red Cross volunteers provided evidence that they saw Astra just before the store closed for Christmas and she was not seen after it re-opened at the end of January. Some said it was Christmas 2000 while others said it was Christmas 2001. It cannot have been the latter for a number of reasons including that there is certainty that the accused did not have the child with her when she moved from Mount Street to Bingle Street in Scone in about November 2001. There is also the evidence of two of the volunteers that they gave Astra a 1st birthday card (August 2000) but not a 2nd birthday card (August 2001).

Emily is born

98. The accused gave birth to a daughter, Emily, in September 2003 and upon discharge from hospital she returned to Woodlands.

99. A child and family health nurse, Elizabeth Garlick, made a routine home visit on 1 October 2003. The accused took her to what she said was "Astra's bedroom" where they sat and conversed. Ms Garlick described the bedroom as decorated with a beautiful mural on the wall with fairies, flowers and unicorns. She asked about the whereabouts of Astra and the accused told her that she was staying with friends for an extended period of time while she "bonds" with the new baby. Ms Garlick asked when Astra would be coming back but the accused did not answer. Ms Garlick did not see any photographs of Astra.

100. Ms Garlick contacted the accused's general practitioner in Scone. It was his understanding that Astra was with the grandmother, Hilary Papley. Ms Garlick then contacted Community Services on 3 October 2003.

101. Ms Wendy Wilson gave evidence about the Community Services notification. She said that there was no information about any risk in relation to Astra and the matter was given the lowest level of priority. It was not investigated.

Deterioration in late 2003

102. Concerns were raised about the accused in late 2003-early 2004. Mrs Seymour said that her late husband had reported that the new baby was starving; he had seen her being fed with a bottle of water and the accused had said she was feeding her grapes. He had also said that he saw baby food around the front yard and it was being eaten by cattle. A report was made to Scone police.

103. The neighbour, Mr Pike, said that in January 2004 he became worried. Mr Seymour had mentioned the accused claiming that her food was poisoned. Mr Pike paid her a visit and found her sitting in the kitchen. He asked her if she wanted anything from town and she replied, "It would be better that they both died". He understood her to be referring to herself and Emily. (It is not a finding I can make but she may have been referring to Astra and Emily.)

104. On 24 January 2004, Community Services received a report that Emily was not being sufficiently cared for in terms of feeding etcetera. The Hunter After Hours Response Team attended at 10 pm that evening. Emily was observed to be appropriately clothed, peaceful, healthy and well cared for. The accused was slightly paranoid about neighbours but there was no apparent concern about her ability to care for the child. The caseworkers concluded that no risk of harm to the child could be substantiated. They gave the accused some guidance with respect to feeding Emily and follow-up was recommended.

105. In reviewing the report of the visit to the accused on 24 January in the following days, a caseworker noted that there was no mention of Astra being sighted and so some inquiries were made. Mrs Papley recalled receiving a call from Community Services and being asked, "You've got Astra haven't you?" When being asked about this in her evidence she said she replied, "No" and added, "I mean they [Community Services] were in my house every week, they would know". She also gave evidence that she had become aware of the birth of Astra in a call from a Community Services officer in about December 2000 when she was told "that they [Community Services], the mental health team and the Red Cross were all keeping an eye on Astra".

106. The medical records of the surgery in Scone where the accused saw a general practitioner between May 1999 and September 2007 contain no reference to her receiving any medication in relation to her mental illness between the births of Astra and of Emily. There is a note to the effect that she received Risperidone on a daily basis while in hospital for the birth of Emily but none following discharge.

Emily taken into care; the accused taken to hospital

107. At 4.00am on Wednesday 28 January 2004, Ms Wilson and another caseworker went with police to Woodlands. The accused was asked about Astra and she became quite erratic and irrational. She called the Community Services officers liars and blamed them for the placement of her other children with her mother. She refused to provide any information about Astra, where she was or who she was with. Emily was taken into care and police conveyed the accused to Maitland Hospital where she was admitted to the Mental Health Unit.

108. The accused remained in hospital until 13 February 2004. The discharge summary records that she had been found to be "disorganised at home". On admission she had "bizarre delusions of voodoo practices on her farm and bestiality on her animals". The note includes, "past diagnosis of schizophrenia and THC abuse, relapse following non-compliance on medication". Notes of an assessment of her current situation include: "Fears her 3 older children are placed with a 'paedophile' - ? grandmother in fact" and "Very garbled history – feels she has a supportive friend near Byron Bay (her middle child [female] was placed with them)".

109. On 29 January 2004 an application was filed in the Children's Court for both Astra and Emily to be placed under the care of the Minister.

110. Belinda Allen (née Crosbie) was a social worker who spoke with the accused on 29 January 2004 whilst she was an inpatient at the hospital. The accused said that she had given Astra to friends to protect her from a paedophile ring in Scone. She said, "The only way to keep Astra safe is to keep her location secret". She reported recent contact with Astra and said that she communicates by sending "special messages through certain people". She was aware that police and Community Services were conducting investigations into Astra's disappearance and said "she cannot trust these agencies as police officers were among those who abused her as a child".

111. Ms Allen spoke with the accused again a few days later. The accused said again that she was keeping Astra safe by remaining silent about her whereabouts. Ms Allen noted, "She is with friends who helped to protect [the accused] when she was younger. These friends were physically assaulted for doing so. They are near the beach." In cross-examination, Ms Allen agreed that her notes included that the accused was very concerned that Community Services would place her baby with her mother because her mother had been involved in a paedophile ring which subjected the accused to abuse when she was a child.

112. On 4 February 2004 Ms Wilson and another caseworker spoke with the accused. She again refused to provide any information about the whereabouts of Astra except to say that she was "with friends who were a wealthy family near the beach". She also said that Astra had left her care just after January 2001.

113. On 9 February 2004 the accused was served with the papers concerning the application filed by Community Services in the Children's Court. The accused told Ms Wilson that she would "deal with the situation in an appropriate way" and that upon her discharge from hospital she would get Astra and present her at court.

114. On 12 February 2004 the accused spoke to Ms Allen about her intention to travel to Forster on the mid-north coast upon her release. She said that there she would be contacting Astra's carers and would ensure that police and Community Services were aware of Astra's safety. (Ms Allen said that the accused also spoke on this occasion about being born in England of noble blood; of bestiality being performed on her animals; and of satanic cults around her property.)

115. On the same day, the accused also spoke with Tracey Cook, a Community Services caseworker about requiring the weekend to make necessary arrangements in relation to Astra and organising representation for the forthcoming court case. She said she needed to speak to Astra's carers and to organise a "safer residence". She was still not willing to provide any information as to where Astra was or who she was with. She said she would make contact with Ms Cook on Monday 16 February.

116. During this admission the accused was recommenced on antipsychotics and depot injections and she was discharged on 13 February 2004 on a six month community treatment order. The diagnoses recorded were Schizophrenia, Schizoaffective disorder and Polysubstance abuse.

Events following discharge from hospital

117. The accused telephoned the Muswellbrook office of Community Services on Monday 16 February and spoke with Ms Wilson. She said she had been to Forster and that the friends who were caring for Astra had gone to Byron Bay so she would follow. The accused was asked to contact Ms Wilson as soon as she had seen Astra.

118. On 24 February the accused rang Ms Cook. She had returned to Scone after having been in Byron Bay where she went "up to the hills" where she saw Astra for an hour or so. She declined to give any further detail. Ms Cook said to her, "You do know Karen that we need to see Astra". The accused replied, "Yeah, but I would prefer to speak with my solicitor first".

119. The accused attended Muswellbrook Community Services on 27 February for a contact visit with Emily. Ms Wilson tried to convey to her that Community Services did not intend to remove Astra from her present carers but they needed to make a placement assessment. The accused told her that Astra's carers were currently interstate visiting relatives but that "I can tell you that I have seen her … She is fine and I will be getting her back, but at the moment she is safe where she is." She expressed a concern that if Astra came into the care of Community Services she would never have contact with her again and this was the reason she was not going to say where Astra was. Ms Wilson tried to assure her that this would not be the case; that she would be allowed to see Astra.

120. Ms Cook recalled that during this attendance for the contact visit with Emily, the accused had spoken of Mrs Papley not being her biological mother and requested a DNA test to prove it. She also spoke of having been molested as a child; waking with bruises on her arms; being molested by a pastor in a church; and Mrs Papley having drugged her with Valium when she was a child.

Evidence at Toronto Children's Court

121. The hearing of the application to place Astra and Emily into the care of the Minister for Community Services occurred in Toronto Children's Court on 4 March 2004. The accused gave evidence which may be summarised as follows:

She last saw Astra when she was in Byron Bay a week or two ago. Before that she last saw her before Emily was born. Up to that time she had been seeing Astra every few months.

She made contact with the people looking after Astra through a mutual friend(s). [In its entirety, there is uncertainty about whether the friend was singular or plural.] The friend(s) would tell the accused where Astra and the carers were.

She did not know if the carers had changed their name. She said they had a big family network with members who lived interstate. After her last visit the carers had gone to the Northern Territory.

She met the carers when they lived in Aberdeen when she was a child. They had a farm and the accused used to run to that farm on occasions when she was scared. This was when she was about 3 or 4 years old.

When she knew them as a child their name was "Cambell" or "Campbell". She could not recall their Christian names.

The carers also had a place at Bellingen; she was not sure of the address but she had visited them there once. When she moved back to Scone (in 1999) she had re-established contact with them. This was by chance as these people were just visiting Scone at the time. Subsequently she kept in contact with them.

The accused gave Astra into their care when Astra was older than 18 months. It would have been in 2001. She had been in their care ever since.

The carers were grandparents and aged in their 60s. They were retired and used to do farming work. They were stable country types. She called them "Nan" and "Pa". She thought the lady's name was "Edna" but she could not say what the man's name was. They had children whose names were unknown, aged in their 30s or 40s, who helped with the care of Astra.

On her recent trip to Forster, the accused had seen the mutual friend(s) who told her that the carers were up at Byron Bay. She went to Byron Bay and met them at a meeting place where she saw Astra for a little while.

She did not know the name of the mutual friend(s). She just knew their faces and could recognise them.

The reason this was all so secretive was because, "I've had a lot of trouble in the past with, to do with Hilary [Papley’s] Christian Organisation and to do with certain other people who were neighbours".

The carers call Astra, [a contraction of her name] for short. They did not use the name Papley.

They knew she was coming to see them on this recent visit because the mutual friend(s) at Forster had contacted them.

The meeting in Byron Bay was "up in the hills".

As to why she gave Astra to them she said, "Because I was having so much trouble in the flat with the neighbours and the whole situation was really negative and I needed some time by myself and it was never meant to be for so long, but every time I went to get her back something bad would happen for me."

As to the decision to put Astra into their care she said: "Hassles at home, I was having very bad trouble with the neighbours who were causing me a lot of trouble. They were breaking into my place and they were going through my stuff and they were calling out names when they walked past and it was really horrible to wake up and find them outside the window."

During cross-examination by the solicitor appearing for Mrs Papley, the accused volunteered, "You're representing a woman who I call a paedophile".

122. Some care must be taken in assessing this evidence. The accused had recently been discharged from hospital with a diagnosis of a serious mental illness. She had recently recommenced on medication to deal with that illness. Moreover, one of the psychiatrists called to give evidence pointed to some passages in the transcript that indicated to him that she remained delusional when giving this evidence; the other psychiatrist essentially agreed, observing that her delusional beliefs had not responded to treatment.

123. There is evidence to the effect that the accused's demeanour in giving evidence was subdued; she exhibited a flat affect. On the other hand, it is quite clear from a number of her answers that she was listening carefully to the questions and responding appropriately to the subject matter. On a number of occasions she corrected the lawyers when they misquoted what she had previously said.

Subsequent events

124. Emily was placed under the care of the Minister and in December 2004 she was given into the care of Mrs Papley.

125. The accused continued to maintain her account of Astra being in the care of a couple who she was not prepared to name or say where they were.

126. In December 2004 the accused was interviewed by a television reporter. Her account was broadly similar. She added that Astra was "using a new name". She said, "I changed her name … she's under a different name now". The reporter asked whether Astra had a false birth certificate and the accused replied, "I don't know, all I know is that her name's been changed and that's what they've done". When she was asked if she would like to see her two daughters with her mother she replied:

"No, because I was abused as a child. My mother was involved in a lot of cults and she's not a very nice person when it comes, she's very sly. And um, we don't have a relationship whatsoever because of my past."

127. On 1 February 2007 a Detective Sergeant Frith spoke to the accused at Woodlands. She had previously agreed to provide investigating police with proof that Astra was alive. On this occasion, however, she told the detective that she had been too busy but that she would do so within the next two weeks. Nothing was ever forthcoming. The detective gave evidence in December 2013 that the accused was agitated and paranoid at the time of this conversation. She was looking around as if other people were nearby. Her mood was elevated and she was becoming more stressed. She was very paranoid that different people were going to do things to Astra and she had to keep her safe. She said she could not tell police certain things. She was concerned due to the involvement of police and everyone, but mostly Hilary Papley. She expressed concern that Astra would end up with Mrs Papley. She was paranoid about any official organisation, including Community Services and the police, with the power to take her children.

127. In November 2007 the accused was admitted to Lismore Base Hospital for four days following a deterioration of her mental state following non-compliance with her medication regime. The diagnosis recorded was "Paranoid Scz".

128. On 7 December 2007 Mr Seymour went to visit the accused at Woodlands. Police had equipped him with a listening device. There was conversation about her imminent departure from the property and move to the north coast. Mr Seymour asked if they could talk about Astra. When she did, the accused spoke of her in the present tense. She described her as "a real cutie", a "big girl", a "country girl". She remained concerned about her mother getting custody, given that her mother was "a paedophile".

129. The accused told Mr Seymour that she missed her children and, "they should be with me, I just want to raise them myself, you know. I'm sick of being in this position".

130. Towards the end of the conversation she said:

"I was hoping so I could organise it so she was back in my life, you know …. And that's … what my plan is for the future, you know. That, that's what I want to get sorted out in the future, to have her back in my life on a regular basis, you know. And, and have, have that privacy and family, and, and that's what I actually would like to see happen in the future. I hope there, there can be some sort of chance of it anyway, you know. There must be things that can be organised, or, or things, you know, that can be handled in a different way, you know. I just need a bloody good lawyer, that's all I need."

A move to the north coast

132. There was a body of evidence concerning the accused's life after Woodlands. She moved to Evans Head. There, and in that area, she moved from one accommodation to the next. Paranoia was still evident. She still referred to Mrs Papley as a paedophile, involved in satanic cults and not her real mother. Other delusional thoughts were expressed: for example, hearing voices and saying that at one place she lived her landlady was having sex on her verandah. She spoke about her fear of her mother getting custody of Astra because her mother's partner was a paedophile.

133. The accused's mental health deteriorated in 2009. By this time she was pregnant once again. She was admitted to the Lismore Base Hospital from 13 May to 24 August 2009 following "behavioural disturbance/psychosis". The discharge summary recorded, "expressed chronic delusions (about her mother's involvement in a paedophile ring)". She was discharged on a community treatment order. The diagnosis was "Schizophrenia – paranoid type".

134. The accused's sixth child was born while she was in the Richmond Clinic. He was taken into care straight away. At some point he was placed in foster care with a family in Newcastle and the accused was permitted to visit. On her return to Evans Head after such a visit she happened across Ms Lorraine Craven, a volunteer with a charitable organisation that had provided assistance to the accused. The accused asked, "Have you heard?" She proceeded to tell Ms Craven that "Hilary, her mother, had visited [the baby] and 'sexually molested him'".

135. Helen Leaver, another of the charitable organisation volunteers, gave evidence that she spoke one day with the accused about the missing child, Astra. She pointed out that Astra would have been 14 years old and taking her away from where she was probably would not happen. The accused replied, "I can't take that risk".

136. Hearings of a Coroner's inquest in relation to Astra took place in December 2013. Ms Leaver was asked to try and persuade the accused to obtain a biological sample from Astra (so that it could be confirmed that she was alive). She said she raised this with the accused a few times but nothing came of it.

137. The accused was arrested by police on 16 March 2016 and charged with the murder of Astra.

Untruthful allegations about her mother

138. Finally in this review of the evidence it should be noted that Mrs Papley was asked by senior counsel for the accused whether she had ever drugged the accused; sold her as a child for sex with adults; been involved with paedophilia; or had a friend or immediate family member who had sexually assaulted the accused. All such questions were answered in the negative. All of the questions were in the nature of inquiries. The fact that none of them were put as affirmative propositions is indicative of there being no acceptable evidence to support them. I am satisfied that all suggestions of this type that the accused made about her mother had no foundation in fact.

Is Astra dead?

139. The first essential question to be addressed is whether it has been proved beyond reasonable doubt that Astra is dead.

Astra not seen since 2000-2001

140. Aside from the accused, no known person has seen Astra since 2000-2001 and nor has any known person claimed to be aware of any evidence suggesting she may be still alive. None of the witnesses called in the trial, or whose statements have been tendered by consent, have indicated that they have seen her since 2000-2001 or have any such knowledge.

141. Investigations carried out by police have been extensive. Inquiries have been made in relation to the following in an endeavour to find any evidence of Astra still being alive:

Institution	Records searched
Health Insurance Commission	Medicare benefits paid or prescribed medications subsidised under the Pharmaceutical Benefits Scheme
Centrelink	Family tax benefits or parenting payments
Department of Foreign Affairs and Trade	Records of passports issued
Department of Immigration and Border Protection	Travel into and out of Australia
State, Territory and Federal police forces	Interactions with police. Unidentified bodies or remains found.
State and Territory authorities the equivalent of the NSW authority now known as Roads and Maritime Services	Drivers licensing, motor vehicle registration, proof of identity cards
Telecommunications service providers	Telecommunications services including mobile phones and internet connections
Australian Taxation Office	Interaction with the taxation system by way of taxable income earned through employment or interest on savings and investments
Major banking institutions	Bank accounts held
State and Territory Births, Deaths and Marriages registries	Registration of change of name
State and Territory adoption records	Records of children adopted
State and Territory education authorities	Enrolment in public, independent, Catholic schools and home schooling

142. All of these investigations were to no avail.

143. In relation to the Medicare claims history for Astra, there are records of her having received medical services on 12 October 1999, 11 January, 25 February and 18 October 2000 (immunisations by Dr Snyman in Scone) but none since.

144. Astra was still linked to the accused’s Medicare card and Medicare account as at 6 March 2015 and so the address records relating to her mirrored those of the accused, changing whenever hers did.

145. Centrelink records showed the accused’s older two boys leaving her care on 11 December 1996 and Emily leaving her care on 28 January 2004. Her third boy is deceased. Presumably there was no record of benefits paid in respect of the child born in 2009 because he was taken from the accused’s care at birth. So, in relation to those children the records matched the facts. But they indicated that Astra was still in the care of the accused up to 28 September 2006; beyond when it is common ground that she no longer was.

Campbell or Cambell

146. In her evidence at Toronto Children’s Court on 4 March 2004 the accused said that the couple who were caring for Astra were known to her when she was a child by a surname of either “Campbell” or “Cambell”.

147. Police extended their inquiries as far as it was possible to do so to include the possibility that Astra had become known by one or the other variant of that surname. That was to no avail.

148. The accused also said that she thought the female’s first name was “Edna”. Police made an exhaustive countrywide search to identify any such person who may have lived in the Scone area in the period when the accused lived there as a child. This was also to no avail, although they were unable to completely exclude three such people. There were 48 Edna Campbell/Cambells identified throughout the country. Police managed to contact 45 of them, or the next of kin, and excluded them from having had any contact with the accused or Astra.

149. Three people could not be positively excluded because police were unable to speak with them or their next of kin. Two were women identified in the 2004 Australian Electoral Roll as being residents of Victoria; they would have been aged 85 and 81 at the time of Astra's "disappearance" in 2001. The third was a resident of South Australia according to inquiries with that State's police force and she would have been aged 90 in 2001. There was no evidence one way or the other linking these three women with the accused or Astra. However, the chances of any of them having lived in the Scone/Aberdeen area in the accused's early childhood years, to have again been in Scone in 1999-2001, and to have been caring for Astra on the north coast of New South Wales in the years to follow, appear to be extremely remote. Moreover, their ages are inconsistent with the accused having said in 2004 that the supposed carers of Astra were in their 60s.

Phone records

150. The accused’s phone records were searched. Landline records were of no assistance in that the phone the accused had when she lived in Mount Street, Scone was only able to receive calls and not make calls (apart from the emergency number). Mobile phone records were also examined in respect of a phone service to which the accused subscribed in the period 18 December 2008 to 3 April 2014. The subscribers of all personal phone numbers contacted by the accused’s phone (that is, excluding business and government numbers) were identified. With the exception of services subscribed with false names, or by persons who had moved overseas or were deceased, the subscribers were followed up. None were able to provide any useful information concerning Astra.

Byron Bay area inquiries

151. Police made extensive inquiries in Byron Bay and the surrounding area, given the references by the accused to having spent time there and, in particular, her having told a Detective Sergeant Simos on 29 January 2004 that Astra was safe and living near Byron Bay. Detectives attended in August 2004 and made inquiries at places including medical centres; organisations providing housing and other assistance for people in need; an indigenous camping area in the sand hills around Byron Bay (mentioned by the mother of someone with whom the accused travelled with to Byron Bay on two occasions); schools, pre-schools and day-care centres; a temple a witness suggested the accused had attended; and an eco-farm the accused may have worked at. None of these inquiries bore any fruit as to the whereabouts or as to any history of Astra.

Searches of the accused's residences and surrounding areas

152. A search warrant was executed at Woodlands on 4 February 2004 and a number of items were seized. Some items were tendered as exhibits. None of them are suggestive of Astra being alive but there are two items which, according to the Crown, indicate to the contrary.

153. In a notebook (Exh AE) the accused wrote:

"Killed Snapper Point

Souls are [a contraction of Astra’s name] + Boy"

154. Snapper Point is part of the Lake Munmorah State recreation forest south of Newcastle. Detective Sergeant Wright said that consideration had been given to searching that area but it was too large and there was nothing to focus a search on any particular part of it.

155. In another notebook (Exh AF), the accused wrote:

"HAVE GOOD

MEMORYS

MY

ANGEL

ASTRA

I LOVE YOU

2001"

156. I am cautious about making anything of these writings. There is other content in these notebooks that is nonsensical or impossible to follow. One of the psychiatrists said that the accused's writings in 2001 could be regarded as evidence of thought disorder. Moreover, the Crown Prosecutor did not submit that, for example, the extract from Exhibit AE set out above should be regarded as a reliable statement that Astra had been killed at Snapper Point.

157. The Woodlands property was searched in August 2005 by police and SES volunteers but nothing useful was found. Given the property comprised some 540 acres, if there was something useful the chances of finding it would have been rather slim.

158. Police searched the Mount Street units where the accused lived in 1999-2001, during which time Astra was born and disappeared. The searching extended to the use of luminal examination to detect blood, a search of wall cavities, and the use of cadaver dogs to search the grounds. Nothing was found.

159. Caves in the area of Russley, where the accused lived as a child, and caravan parks on the north coast, where the accused had stayed, were also searched without success.

Other inquiries

160. There were media releases at times and appeals for readers to contact police with any available information, the 2004 television interview referred to earlier, and an article in Women’s Weekly magazine. They did not generate any useful information from the public.

161. Fruitless inquiries were made of the accused’s banking records, Australian Post records in Scone; and a hotel she suggested she might have stayed at in Forster in February 2004.

162. The accused said in her Children’s Court evidence that she used to go to the home of the Campbell or Cambell family when she was an infant living at Aberdeen (at Russley). She said, "They had a farm there, I used to run to the farm". Inquiries were made with the shire council to identify land owners with that name in that time frame. A number of pastoral properties were identified but they were a significant distance from Russley. The closest property held by a person with that name was within the Aberdeen township some six kilometres away.

163. The accused was thought to have suggested in her evidence at the Toronto Children's Court that she had seen the Campbell or Cambell family at a place in Bell Street, Bellingen. This is not entirely clear, given at one point she said she was not sure of the address in Bellingen but at another point agreed that they lived in Bell Street. In any event, police made inquiries of the Bellingen Shire Council and were informed there was no Bell Street in Bellingen but there was an unformed road reserve called Bell Street at a place called Fernmount (a location just east of Bellingen). There was no record of a property at that location being owned by anybody named Campbell, but that was only since 1 July 1999. The significance of these inquiries is questionable given the accused said in her evidence, "I don't know if they owned it, I don't know if it was relatives of theirs. I just remember going there as a child. … I can't give you a definite answer … because of my limited awareness as a child".

Conclusion

164. My earlier description of the police investigation as being extensive could be an understatement. Nevertheless it is one that could never be conclusive. For example, inquiries that were dependent upon the child’s date of birth would not have revealed any evidence of a person with the child’s name and a slightly altered date of birth. Inquiries of taxation records would not have revealed information about a person receiving undeclared cash income. Inquiries of schools were dependent upon legitimate proof of identity being scrutinised on enrolment and there were a number of schools that enrolled students without sighting a birth certificate. There are fairly stringent requirements for a person to change their name and have it formally registered throughout the country, but an unregistered change of name would not be detected. Adoption records were only of those carried out through formal processes; an informal adoption carried out without recourse to government authorities or courts would not be detected.

165. Whilst not completely conclusive, the nature and extent of the various inquiries made by police was likely influential in it being conceded by counsel for the accused that, having regard to all of the circumstances, there was a low degree of probability that Astra exists. However, he contended nonetheless that there was a reasonable possibility that she was alive.

166. In all of the circumstances it would be astonishing if Astra was alive after having disappeared at an age when she was barely able to walk with there being no evidence independent of the accused of her being alive in the following 16 years. I am satisfied beyond reasonable doubt that Astra is dead.

167. The accused's explanation, with all its inconsistency in detail, is incapable of acceptance. For example, it is simply unbelievable that she would trust the care of her beloved daughter to people whose names she did not know, or could not even be sure of, even though she claimed to have visited them regularly over the years. There are many other inconceivable aspects of her account. It is of some note that it was not submitted, at least not in any direct terms, that I should accept the accused's explanation as a reasonably possible version of events.

168. In assessing the accused's version(s) it is necessary to make full allowance for her mental illness. Many things she has said, particularly about her mother and the mistreatment she alleged to have experienced in her childhood, cannot be regarded as deliberate lies; they are clearly delusions. However, the evidence from two psychiatrists that I will refer to shortly was to the effect that the accused would probably have the capacity to remember certain aspects of Astra leaving her care.

169. I am satisfied beyond reasonable doubt that the accused's story, as developed in most detail in her evidence at the Toronto Children's Court, of Astra being given to a couple who had looked after her ever since, is a deliberate lie. As was submitted by counsel for the accused, there may well have been reluctance by the accused to provide information or an evasiveness in her answers, as there had been on other occasions when she had been asked about Astra. However, it is what she said, rather than what she did not say, that is being assessed and I am satisfied that what she said about Astra's whereabouts she knew to be untruthful. I am satisfied that one of the reasons for telling this false story was that she knew that the truth would reveal that Astra was dead. That, in my view, also explains why she has been so evasive and reticent in providing detail.

170. Senior counsel for the accused acknowledged in the course of his submissions that "there is no positive evidence, or evidence from which an inference might be drawn, that Astra is alive, aside from accounts of the accused". When the accused's false story is put aside, there remains no evidence to support any rational hypothesis other than that Astra is dead. I am satisfied beyond reasonable doubt that she died within the period specified in the indictment, most likely between 25 December 2000 and the end of January 2001.

171. I am also satisfied beyond reasonable doubt that Astra's death was caused by a deliberate act or omission of the accused. I cannot determine what that act or omission was, but a charge of murder may be proved even in circumstances where the precise cause of death is not known: R v PL [2009] NSWCCA 256; 199 A Crim R 199.

172. The deterioration in the accused's mental state during the period in which the child "disappeared" is a factor supporting my finding. So too is the elaborate false story the accused gave in her evidence at the Toronto Children's Court. I am satisfied that she told that lie because she feared that the truth would reveal that Astra is dead and that some act or omission of hers caused that death.

173. In coming to this conclusion I have had regard to the combined force of all of the circumstances. However, some particular matters are worth specific mention.

164. Whilst there was evidence that the accused appeared to be a loving and caring mother early in Astra's life, there is some significance in the fact that both before and after the birth the accused made inquiries about arranging for Astra to be adopted. While pregnant, she asked Jessie Ryan about Ms Ryan's mother adopting the child and she also made inquiries with Ms Gould, a social worker. After the birth, there were discussions about Mr Turner assuming care of the child and then there were the discussions with Mr Burns and Ms Seymour about a possible adoption. The latter discussions, were instigated by the accused when Community Services started making inquiries at the beginning of August 2000. I infer from these proposals to have Astra adopted that the accused was prepared not to have the child in her life.

165. It is uncontroversial that the accused distrusted authorities, particularly Community Services, and that she had a morbid (but delusional) fear about Mrs Papley gaining custody of Astra. Some four months before the child went missing, the accused said to Janice Seymour that "Astra was getting to an age where [Community Services] would come and take her". I infer from this that, absent an adoption she regarded as suitable, she had to find another way to thwart the authorities and her mother.

166. There are also references in the evidence of Mr Turner, Ms Day and Ms Leaver to the accused saying that she was not, or had not been, coping with Astra. Further, in July 2000 she was reported as directing anger and frustration towards the child. In closing submissions it was accepted that there was "evidence [that] might support the inference that she was not coping with Astra at the time she disappeared".

167. Astra was a child of extremely tender years and she was in the sole care of the accused. There is no suggestion, let alone evidence, that she suffered some accident or other misadventure. I do not accept a speculative possibility that she did so and that the accused thereafter sought to conceal her death resulting from some such incident. It has not been contended that there is any reasonable possibility of this.

168. As to why the accused killed her child, the first thing to observe is that it is not a requirement that the Crown prove a motive. Secondly, the psychiatrists referred to there being an element of speculation about a reason. Nevertheless, it seems most probable that the child was killed in some way because she was incorporated into the accused's persecutory delusional beliefs and she acted in some way to save the child from Mrs Papley.

Is the Accused not guilty by reason of mental illness?

179. Having determined that it was a deliberate act/omission of the accused that caused the death of the deceased, it is then necessary to first consider whether she is criminally responsible. It is only if this issue is determined adversely to her that it would become necessary to consider whether the Crown has established beyond reasonable doubt whether the act/omission was accompanied by one of the mental states necessary to prove the offence of murder: Hawkins v The Queen [1994] HCA 28; 179 CLR 500 at 517; R v Minani [2005] NSWCCA 226; 63 NSWLR 490 at 498 ([32]) (Hunt AJA, Spigelman CJ and Howie J agreeing).

180. Section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) provides:

38 Special verdict

(1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

(2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person.

181. The defence of mental illness is made out if the accused establishes on the balance of probabilities that at the time of the act (or omission) that caused death she was labouring under such a defect of reason from a disease of the mind that she did not know the nature and quality of the act (or omission) or, if she did know it, she did not know that what she was doing was wrong (meaning wrong in accordance with the ordinary standards of right and wrong adopted by reasonable people): McNaghten's Case (1843) Cl and F 200; 8 ER 718; The King v Porter [1933] HCA 1; 55 CLR 182.

182. Not knowing that what she was doing was wrong means that she could not think rationally of the reasons which to ordinary people make the act (or omission) right or wrong; or not being able to reason about the matter with a moderate degree of sense and composure; or an inability to reason with some moderate degree of calmness in relation to the moral quality of what she was doing (or omitting to do): The King v Porter at 189-190; Stapleton v The Queen [1952] HCA 56; 86 CLR 358 at 367; Sodeman v The King [1936] HCA 75; 55 CLR 192 at 215.

183. If there was a jury I would be required by s 37 of the Mental Health (Forensic Provisions) Act to explain the consequences that would follow from a finding of not guilty by reason of mental illness. I simply record that I am well aware of those matters; they are set out in detail in suggested directions to a jury in the Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales (at [6-260] and [6-270]).

Dr Olav Nielssen

184. Dr Olav Nielssen is an eminent and experienced forensic psychiatrist. He interviewed the accused on 18 October and 2 November 2016. He also spoke to her treating psychiatrist, Dr Glen Fuller and read a number of relevant documents, primarily hospital records. He provided a report on 4 November 2016.

185. Dr Nielssen made a diagnosis of Chronic Schizophrenia. This was based upon:

"[T]he history of what seemed to be a chronic persecutory belief involving her mother, the corroborative information from Dr Fuller and in the medical records, and Ms [Papley’s] presentation at the time of the recent interview. …

Ms [Papley] might have been described as having the subtype paranoid schizophrenia under earlier classification systems, as the main residual feature of schizophrenia appears to be a chronic delusional belief. However, from the descriptions of Ms [Papley’s] mental state early in the illness it seems she had the full syndrome of schizophrenia at that time, and she has been variously described as catatonic, hebephrenic and disorganised in medical records. Her delusional beliefs regarding her mother appear to have been informed by the typical symptoms of schizophrenia that were present before she began to receive consistent treatment following the admission to hospital in 2004."

186. Dr Nielssen wrote the following as to the reliability of the accused's memory:

"Opinion regarding what another person remembers is always speculative. However, it seems that Ms [Papley’s] memory of events is quite unreliable, and appears to have incorporated events that form the basis of her delusional beliefs. …

In my experience, people with schizophrenia become aware that other people consider the abnormal beliefs arising from their illnesses to be delusional, and frequently present historical events in a way that makes them sound more plausible, or even make up events to persuade other people that their beliefs are based in fact. An example is people who experience threatening auditory hallucinations will often say the threats were spoken out loud to their face, when that is obviously not the case. Similarly, Ms [Papley’s] account of seeing her daughter over the years without disclosing to her that she was her mother would appear to be an embellishment of what seems to be a fixed delusional belief. Other possible explanations are that her belief regarding her daughter’s whereabouts and progress stem from the content of hallucinated voices, and also that she is in fact fully aware of what happened to her daughter and has maintained her account of handing her daughter to the care of unidentified persons knowing that to be false. If this is the case, her implausible explanation also reflects the impairment in judgement and a capacity for logical thinking arising from a chronic form of mental illness.”

187. As to the accused being mentally ill at and around the time when the Crown alleged that Astra was killed, Dr Nielssen wrote:

“Ms [Papley] had a well established diagnosis of schizophrenia, with a series of admission for treatment of acute psychosis in 1997, an admission in March 1999, and several presentations to Scone Hospital indicating the presence of psychosis in the period before [Astra’s] birth on 17.8.99. She has a chronic delusional belief about her mother, and she reported believing that she was being watched by associates of her mother while she was living in Scone. However, there is no indication that Ms [Papley] received treatment with antipsychotic medication from some time before she left Gosford Hospital on 26.3.99 and her admission to Maitland Hospital on 28.1.04, and it is likely she was affected by a severe and unremitting form of mental illness in that period, including between 25.12.00 and 28.2.01.”

(Dr Nielssen had been given to understand that the period alleged was that mentioned at the end of that extract. When asked if it made any difference that the time alleged in the indictment continued to 25 December 2001 he said it did not.)

188. As to the availability of a defence of mental illness, Dr Nielssen wrote:

"From the information that is available about the course of Ms [Papley’s] mental illness, and her mental state around the time of [Astra’s] disappearance, I believe Ms [Papley] was affected by acute symptoms of mental illness at that time and would have the defence of mental illness open to her if she was found to be responsible for [Astra’s] death. From the information that is available, it seems that Ms [Papley] was affected by a defect of reason in the form of the chronic delusional belief regarding the malevolent intentions of her mother, including the believe that her mother wanted to take control of her children to allow them to be abused. Based on other similar cases of the homicides of small children by mentally ill mothers, the motive for homicide arising from delusional beliefs is often to save the child from a worse fate, which in this case would appear to be Ms [Papley’s] belief that her daughter might be subjected to sexual abuse if she were to be placed into her mother’s care.

The other delusional belief most often associated with the deaths of children in the care of mentally ill mothers is the belief that the child has been transformed in some way, for example having become possessed by an evil spirit, or that the child is already dead or terminally ill. Another way mothers who are severely mentally ill cause the deaths of small children in their care is through grossly disorganised thinking and behaviour, for example, by abandoning them with no hope of survival or allowing them to drown. However, from the information that is available, I believe the most likely scenario was that Ms [Papley] believed that she was saving her daughter from a worse fate. It also seems that Ms [Papley] has developed the delusional belief that her daughter has somehow survived, probably reinforced by ongoing symptoms of schizophrenia.”

Dr Stephen Allnutt

189. Dr Stephen Allnutt is a similarly eminent and experienced forensic psychiatrist. He interviewed the accused on 10 May 2017 and read a number of relevant documents. He had not been provided with medical records relating to the accused's various hospital admissions at the time of writing his report of 15 June 2017 but said he saw them prior to giving evidence. He said they had the effect of strengthening both the opinion he had expressed in writing as to diagnosis and his view that the accused was mentally unwell around the time Astra allegedly went missing.

190. When writing his report, Dr Allnutt also understood the time frame for the alleged offending was much shorter than is now alleged. Like Dr Nielssen, he said that the wider time frame made no difference.

191. Dr Allnutt's opinion as to the accused being mentally ill is encapsulated in the following from his report:

“In my opinion the accused manifests a diagnosis of paranoid schizophrenia.

The history is consistent with the emergence of psychotic symptoms commencing in about 1997, with subsequent multiple admissions to psychiatric hospitals. The symptoms have been characterised by a persecutory delusional belief system in which she has incorporated a variety of individuals (including her mother and other associates as well as people she perceives as a being part of organised crime). Importantly, her illness has been characterised by the incorporation of her child, [Astra], into a persecutory belief system, perceiving her child as being at risk of some form of abuse and/or kidnapping, and attributing much of the risk to her mother. While she denied symptoms of auditory hallucinations and referential ideas, the illness has also been characterised by auditory hallucinations. Based on the information provided to me, her condition has fluctuated but has been responsive to antipsychotic medication at times when she has used antipsychotic medication. The illness has been aggravated, however, by periods of poor adherence to medication, cannabis use and poor follow-up with Mental Health Services, and this appears to have been the case particularly through the period when [Astra] disappeared.”

192. On the subject of whether the accused had available a defence of mental illness, Dr Allnutt wrote:

“Her psychiatric history dated back to 1997 and she had a possible history of postpartum depression with psychosis. During her pregnancy with [Astra] she was admitted to Scone Hospital and diagnosed with schizoaffective disorder. At the time of admission she was concerned about having cervical cancer (which could have been a somatic delusion). She had probably discontinued her medication in the time leading up to the disappearance.

Commencing August 2000 and continuing after the period of the alleged killing, there is suggestion that she was manifesting paranoia and referential ideas as well as a deterioration in her functioning. She had “bad vibes” about the prospective adoptive parents and started reporting problems coping with [Astra]. She was presenting as dishevelled and socially withdrawn to others and her windows were covered with hessian.

Her diary entries in 2001 could be regarded as evidence for thought disorder; she reported that at the time [Astra] disappeared she was a mess, felt threatened and insecure about her child, and wanted to make sure she was protected. She reported she perceived her mother as a prostitute and paedophile who had drugged her and prostituted her, and was concerned about being spied and followed by others. By 2004 she was markedly psychotic with similar themes (satanic rituals, paedophiles and criminals).

Thus at the material time of the alleged offence, on balance, she suffered a “a disease of the mind” to the extent that she had a defect of reason and was psychotic, and thus at the time had irrational perception of what was happening for the child. Any decisions she made about the child at the material time the child disappeared would likely have been influenced by an irrational thought process.”

193. Dr Allnutt nominated a number of possible motivations for a parent to kill a child (filicide), with those he considered to be the most likely motives in this case being:

• Altruism

• Accident

• Neglect and abandonment

• Confusion

• Impulsive aggression and/or as part of a pattern of abuse

• To avoid detection for another offence related to the child or to hide evidence

194. Dr Allnutt favoured altruism as the most likely, but he stressed in his oral evidence that it was not a conclusion he had reached; other explanations such as neglect (as postulated by Dr Nielssen), accident and abandonment might be valid. Dr Allnutt explained why he ranked altruism as the mostly likely:

"Altruism – she did not want her mother to have contact with or custody of the child and believed she herself had been abused by her mother, an idea that seemed to have emerged later in her life; she had a history of concern about neighbours molesting children and ensured reasonable postnatal visits for [Astra]; she investigated options for adoption because she did not want to be a single mother but also because she had persecutory delusional beliefs about her mother’s potential to harm [Astra]; she approached the Seymour’s about adoption in the time proximal to [Astra’s] disappearance and then did not follow up because she had “bad vibes” about the prospective parent; she had persecutory delusional beliefs about her mother’s potential to harm [Astra] and thus a need to protect [Astra].”

195. Discussing this and further elaborating upon the defence of mental illness, Dr Allnutt wrote:

"Having regard to the information available, the weighting is in favour of the defendant incorporating [Astra] into a persecutory delusional belief system involving her mother, and believing [Astra] to be at risk of harm by others, and that the psychotic motive was altruism. While the other motives cannot be definitively ruled out, all could occur due to psychosis.

Having incorporated [Astra] into her persecutory delusional belief system, she would have been compromised in her capacity to reason about the wrongfulness of at least some of her actions as they pertained to [Astra] and this could have been in regard to actions that resulted in [Astra’s] disappearance, although she likely would have maintained capacity to know the nature and quality of her actions."

196. Finally, Dr Allnutt was doubtful that the accused had no memory of what happened to the child:

"In relation to her obfuscating and the variable accounts of what might have happened to the child, while loss of memory for events is described by individuals who are psychotic at the material time of an offence, in this case I would believe it less likely that she has no recollection of what happened to the child. I also believe it is less likely that she has distorted recollection of events which happened to the child. It is most likely that she maintains capacity to recall what happened to the child, but chooses not to provide this information."

Concurrent evidence

197. The parties agreed that the two doctors should give evidence concurrently.

198. Dr Allnutt explained that his opinion about the accused's memory was not a confident one, but one that he considered on balance to be more likely. As he put it:

"It’s possible that she has no memory of the actual behaviour that resulted in the child going absent, and I’m not sure, my understanding is that the working hypothesis is the child was killed. Now it’s quite possible she may not actually remember that act, or that event, but I think that being aware of what happened to the child, I think that’s more likely, that, in other words, the child has disappeared, that would suggest that there were a whole series of events that must have been - if she is responsible for the death of the child, there would’ve been a whole series of events and behaviours that she would have engaged in to get rid of the body. And so I don’t think the amnesia would’ve extended that far. So I think she at least is aware that the child - she is at least aware as to the state of the child, she may not recall the behaviour that resulted in that state, however. And that’s why I fall to the side of her having memory, but of course we can never go, but that’s my - on balance I fall on that side."

199. Dr Nielssen noted that it was speculative but said:

"I agree with Dr Allnutt that something so momentous as the loss of contact with a child that you’re caring for day and night up to a point is an event that’s not usually completely removed from memory."

200. Later in his evidence he said:

"[I]t just doesn’t fit with my experience of schizophrenia, which is a long experience now, of it completely depriving you of large swatches of factual memory. I mean the whole concept of schizophrenia is keeping real events along with delusional events in your mind. Certainly you do see people who have very elaborate memories based on delusions but it doesn’t mean that they forget other commonplace events and the loss of contact with a child one has been caring for, to completely forget all the circumstances of that, just doesn’t fit with my experience of schizophrenia."

201. The two doctors were asked about the accused's likely mental state in the period of December 2000-January 2001:

"WITNESS NIELSSEN: … [I]t’s my view, my opinion that she was affected by a severe and untreated mental illness. She’s relatively early in the illness, in the first couple of years of the illness. The disorganisation is consistent with the thought disorder, the disorganised thinking that goes with an acute untreated form of mental illness. It’s worse early on, often, and it didn’t get any better. Being untreated, it didn’t remit naturally. It just would've likely to have become progressively worse and have a progressively more disabling effect on her social function in those months.

GARTELMANN: Would it also have a progressively worse effect on her capacity to judge whether her actions were right or wrong, according to the standards of ordinary reasonable people?

WITNESS NIELSSEN: Yes, well, that’s my opinion, in the sense that it was clear that she is viewing the world through the - from the point of view of someone with an elaborate persecutory delusion.

GARTELMANN: Dr Allnutt, having heard the answer given by Dr Nielssen in relation to those last two questions, is there anything that you would add?

WITNESS ALLNUTT: No, I would agree. I mean, it also indicates a gradual decline in her capacities, the probable capacity to care for the child and to make rational decisions around the child and what the child needs or what the child may represent or what the child may happen to - or what might happen to the child, including caring for the child adequately."

202. In their oral evidence the two doctors maintained their opinions that the defence of mental illness was available. Dr Allnutt said:

"I think it would be fair to conclude based on the objective documentation and the observations of the [Community Services] workers in the time more proximal to her disappearance that she was actively psychotic and therefore had a disease of the mind and therefore, because of her psychosis, would have had a defect of reason and thus perceiving her environment - not being able to perceive events in the environment in a rational way, a break from reality and, clearly, given that she refers to others as evil, wanting to do something to her child, she had incorporated the child into her delusional belief system not necessarily believing the child to be anything, but the child was part of her persecutory system in that the child was under threat and she believed that for delusional reasons and as a consequence she would have been compromised in her ability to reason about the child, including reason about the morality of her behaviours as it pertained to the child and on that basis many of the behaviours, including whatever behaviour resulted in the death of the child, would have been influenced by irrationality and therefore an inability to reason about the wrongfulness with a moderate degree of sense and composure."

203. Dr Nielssen said:

"I agree with Dr Allnutt that on the balance of probabilities the mental health - mental illness defence is available to Ms [Papley] for the accident or omissions that led to the death of [Astra Papley] and for the same reasons that I mean it’s a balance of probabilities because we’re joining dots that are far apart. We don’t know what happened to the child and we don’t know exactly what her reasons were for not caring for the child or causing the child’s death, but we know that she was acutely mentally ill in August 2000, we know she was acutely mentally ill in 2004, January 2004, we know that she’s been chronically unremittingly mentally ill ever since and that the medication she receives just damps down the acute symptoms, but she was untreated during the period in which [Astra] died.

So we know that she was acutely mentally ill at that time and we also know that she had some frightening, I guess, very distressing delusional beliefs that could easily have caught up the child in a way that might have led to her causing the child to die and so I agree with Dr Allnutt that her capacity to reason with sense and composure about how she ought to act was affected at the time the child died."

Has the mental illness defence been established?

204. The accused was diagnosed with an Adjustment Disorder with Depressed Mood in January 1997. A probable diagnosis of Schizophrenia was made in late 1997. There was no doubting a diagnosis of Schizophrenia in March 1999. She was not prescribed with any medication upon discharge. In July 1999 there was a diagnosis of Schizoaffective Disorder. She remained untreated and unmedicated for the next two and half years or so.

205. Witness descriptions paint a clear picture of a deterioration of the accused's mental health and the psychiatrists had no doubt that she was seriously ill at the time I am satisfied that Astra was killed. There is a considerable body of evidence that before, during and after the time of Astra's death the accused persisted with delusional and persecutory beliefs about various matters but particularly concerning her mother and Community Services. This had a significant impact upon her ability to appreciate that killing Astra was wrong.

206. Both the Crown Prosecutor and senior counsel for the accused submitted that I should accept that the defence of mental illness has been made out. The evidence of the two psychiatrists is unanimous and compelling. Indeed, it would be perverse if I were to find to the contrary.

207. My finding on the balance of probabilities is that at the time the accused caused the death of the deceased by an unknown act or omission she was labouring under such a defect of reason from a disease of the mind, namely a form of schizophrenia and its effects, that she did not know that what she was doing was wrong in accordance with ordinary standards of right and wrong adopted by reasonable people.

Verdict

208. The accused is not guilty by reason of mental illness.

**********

Amendments

21 August 2017 - [170] Name anonymised

Decision last updated: 21 August 2017