R v RB

[2020] NSWSC 1552

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v RB [2020] NSWSC 1552

Hearing dates:

2 November 2020, 3 November 2020,

Date of orders:

4 November 2020

Decision date:

04 November 2020

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty by reason of mental illness is returned with respect to count 1 of the indictment of 3 August 2020.

2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), RB is to be detained in a correctional facility, or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law.

3.   I direct that the Registrar notify the Minister for Health of these orders.

4.   I direct that the Registrar notify the Mental Health Review Tribunal of my verdict and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and orders, a copy of the indictment, and copies of trial exhibits A51, A53, A54, A57, B1–B4 and Exs. 1 and 2.

Catchwords:

CRIMINAL LAW – murder – defence of mental illness – judge alone trial – accused with chronic schizophrenia – drug and alcohol use exacerbating illness – not guilty by reason of mental illness

Legislation Cited:

Criminal Procedure Act 1986 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28

Radford v R (1985) 42 SASR 266; (1985) 20 A Crim R 388

R v Falconer (1990) 171 CLR 30; [1990] HCA 49

R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20; (1963) 81 WN (Pt 2) (NSW) 44

R v Michaux [1984] 2 Qd R 159; (1984) 13 A Crim R 173

R v M’Naghten (1843) 8 ER 718

R v Porter (1933) 55 CLR 182; [1933] HCA 1

R vTumanako (1992) 64 A Crim R 149

Taylor v R (1978) 45 FLR 343; 22 ALR 599

Category:

Principal judgment

Parties:

Regina (Crown)
RB (Accused)

Representation:

Counsel:
B Campbell (Crown)
J Watts (Accused)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Aboriginal Legal Service (Accused)

File Number(s):

2018/00357083

Publication restriction:

Nil.

Note: a non-publication order prohibits publication of any material which could identify LB, including material which identifies his relatives, including the accused and deceased.

JUDGMENT

1. HER HONOUR: On 2 November 2020 the accused, RB, was arraigned before me on an indictment charging him as follows:

On 17 November 2018, at Tweed Heads in the State of New South Wales, did murder [Baby Q]. 

2. A plea of not guilty was entered to the charge.

3. An order for a trial by judge alone pursuant to s 132(2) of the Criminal Procedure Act 1986 (NSW) having been made on 7 August 2020, the trial proceeded without a jury.

4. There being no dispute as to the matters of fact alleged against the accused relating to the death of Baby Q, the evidence relied upon by the Crown was placed before the Court largely in documentary form, with oral evidence given by Detective Senior Constable Daniel Lovell and Professor Greenberg. The accused did not call oral evidence but relied upon two reports from Dr Olav Nielssen, dated 6 December 2018 and 15 October 2020, Exs. 1 and 2.

Some Initial Legal Principles

5. This being a criminal trial, it is the Crown that carries the burden of proving the guilt of the accused, with the standard being that of proof beyond reasonable doubt. The accused has no obligation of proving anything and he was not required to give evidence. That he did not do so is a matter of no significance, and no further consideration is given to that aspect of the matter.

What the Crown Has to Prove

6. In order to prove the charge of murder, the Crown must prove beyond reasonable doubt that (in the circumstances of this case) a deliberate act of the accused caused the death of the deceased, and that this act was carried out with an intention to either kill or to cause grievous, or really serious, bodily harm; or with reckless indifference to life. The latter means to carry out a deliberate act or omission to act which caused death with foresight of the probability that death would occur.

7. The accused has raised the defence of mental illness. Thus, if the Crown is able to prove beyond reasonable doubt that Baby Q died, 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 for that act, before considering, if necessary, whether the act or omission was accompanied by one of the mental states to which I have just referred, proof of which is necessary to establish the charge of murder.

The Evidence Relevant to the Death of Baby Q

8. No issue has been taken by the accused with any of the evidence placed before the Court relevant to the events leading up to and including 17 November 2018. That evidence establishes these facts.

The Accused’s Background

9. The accused was born on 2 August 1971 in Mackay. He is a Torres Strait Islander man. He was raised in Western Australia and Queensland, at first by his parents and, when they separated, by each of his parents from time to time, individually. The accused is himself the father of four children; his youngest child, Baby Q, is named in the indictment presented against him.

10. He completed his education in Queensland. Apart from two, very short term, unskilled jobs he performed in the 1980s, he has never been employed, receiving lifelong government support payments.

11. The accused has abused substances for much of his life, commencing with petrol sniffing at 12 years of age. From about 17 to 18 years of age the accused began to use alcohol and cannabis and, with the exception of two short periods of abstinence, he has used both almost daily since.

12. The accused was first diagnosed with a psychiatric illness when he was in his early 30s. After an admission to Mackay Base Hospital, a diagnosis of schizophrenia was made. The accused was subsequently treated as an outpatient at the hospital, and later through the Aboriginal Medical Service at Surfers Paradise. He has not always been compliant with prescribed medication and, at the time of the events the subject of the charge, he had not taken medication for about two years, having ceased to take anti-psychotic medication sometime late in 2016.

13. The accused met JM in around March 2016. At that time JM was studying for a double degree at Griffiths University. She also had a mental illness. A relationship developed and JM abandoned her university studies and joined the accused in his peripatetic, often homeless, lifestyle.

14. The couple’s son LB was born in December 2016.

15. Soon after LB’s birth the couple began travelling in Queensland and Victoria, before returning to Queensland. JM fell pregnant with Baby Q. The accused did not welcome the news of JM’s pregnancy and told her that the unborn child was a “bad spirit”. He was intent on JM having an abortion, but she refused.

16. During the course of the pregnancy the accused spoke to others about the baby, offering to give the child to at least one person. He later told another witness, Mr A, that the “elders in Western Australia” had told him it was “okay to give [Mr A] this child”.

17. Baby Q was born on 2 February 2018 in Mackay. After her birth, the accused continued to try to give the baby away to others, including to a woman he regarded as an aunt or mother figure, and a cousin.

18. In the short months of Baby Q’s life the family moved between hotels, the streets, and camping in town parks, mainly in southern Queensland, but also across the border with New South Wales in Tweed Heads. Their lifestyle attracted the attention of the Queensland Child Safety authorities, and of Queensland Police. The accused, however, resisted all attempts to assist the family and was hostile and aggressive to officials.

19. In an attempt to evade the authorities, the accused and JM sought assistance from an acquaintance of the accused, PB and, in mid-October 2018, Ms B helped JM to buy a van, in which the family could both travel and live. They continued, however, to live largely on the streets.

20. Witnesses who saw the family in this period, October to November 2018, noted the accused to be aggressive and domineering with JM, threatening and abusive to strangers, and careless of Baby Q. One witness observed the accused to throw the baby into a stroller with some force, and heard the accused refer to her as a “demon”. Another saw what seemed to be burn injuries, apparently from a cigarette, on the baby’s back.

21. Queensland police officers who spoke with the accused and JM on the afternoon of 16 November 2018 regarded the children as being at risk, living on the streets as they were. During their interaction with the accused, he refused the help offered to him and resisted the attempts of the officers to find accommodation for the family. He referred to the police as having “killed black fellas” and said he didn’t “need no Queen that murdered our family”. He also referred to Nicholas Cage, an actor, and to a movie about “ghost riders”, that being a 2007 film with satanic and religious themes. Despite the accused’s belligerence, the officers took the family to the Kingscliff home of Ms B to stay, later filing a child harm report due to their concerns about the children.

The Events of 17 November 2018

22. KD, a homeless woman who lived on the streets between Tweed Heads and Coolangatta, came to know the accused and his family and saw them from time to time in this period. On Saturday 17 November 2018, Ms D spoke with the accused in Jack Evans Park at Tweed Heads. He wanted her to take Baby Q permanently, and tried to persuade JM to hand the baby over to Ms D. Eventually JM agreed and the accused passed the baby to Ms D before walking away. Ms D followed the family and, catching up with them, returned Baby Q to JM, telling her that she could not look after a baby when she lived on the streets.

23. On the afternoon of 17 November 2018, the accused was observed by witnesses to be acting in an aggressive and intimidating manner. He assaulted a local woman and became involved in an altercation with a man in Tweed Heads, following which, he was seen to move about the streets, head-butting, or hitting street signs with a large stick he carried, pulling out plants from public gardens, and swearing aggressively. He gesticulated angrily at the air, and at one point was noted to have a conversation with a pole.

24. Another witness saw the accused, who seemed highly agitated, throw a bottle or other object at JM as she pushed a shopping trolley with the two children in it along the street. The witness thought that the woman looked fragile; she was unresponsive to the assault upon her.

25. Noting that times referred to by witnesses can vary due to state differences, the family were observed at about 5.30pm at the car park in the Tweed Mall in Tweed Heads. At this time JM had her son with her, whilst the accused was carrying Baby Q in his arms, partially obscured by a blanket. He was seen to walk off with the baby, leaving JM and her son behind.

26. A storm was brewing around the border area on the afternoon of 17 November 2018. It struck Tweed Heads at about 5.40pm, with some minutes of heavy rain falling. At about this time a local resident, Mr Thompson, saw a male with a blanket draped about him – the accused – walk along the Bay Street footpath at Tweed Heads towards the Tweed River. The accused left the path and continued to some rocks at the river’s edge. Moments later Mr Thompson caught a glimpse of an object passing through the air from the land and out into the river. Although he did not know it, what Mr Thompson saw was Baby Q, after she was thrown by the accused into the river.

27. Mr Thompson saw the accused fall to his knees on the riverbank, before moving to lay face down on the ground, remaining there for several minutes as the rain continued to fall. At about this time another witness who observed the accused laying on the riverbank, saw what she assumed was a bundle of his possessions floating down the river. Soon after the man was seen to get up and walk away out of sight. The bundle was seen by a number of people bobbing in the storm tossed waters, and floating along the river and out towards the sea.

28. The accused returned to JM and their son, who were camped in the car park at Tweed Mall. JM saw that the baby was not with him.

The Aftermath

29. On the morning of 18 November 2018 the accused, JM, and LB went to a bus station to get a bus to Surfers Paradise. JM asked about the fate of Baby Q. The accused responded, “How dare you ask me the things of God”, but told JM, “I drowned her”. The family got on a bus and travelled to Surfers Paradise.

30. Later that morning Queensland police officers patrolling in Surfers Paradise were alerted by members of the public to an indigenous male who was walking the streets yelling and screaming and conducting himself in an aggressive manner. Constables Atkinson and Bailey located the male, the accused, and spoke to him and JM. A transcript of the footage recorded by the officers on a body worn camera has the accused speaking in an irrational way, referring to the police as “invaders”. He told them that he had consumed a “six pack” of beer. He referred to his daughter being “with the elders”.

31. The accused was arrested for public nuisance.

32. The arresting officers noted that the accused appeared to be grossly affected by some intoxicant and, when in the rear of the police vehicle en route to Surfers Paradise Police Station, he shouted incoherently and kicked the vehicle. After being placed in a cell at the Southport Watch House the accused was noted to be continuously masturbating. When he was told to stop he began head-butting the cell door and throwing cushions against it.

33. He was released to bail shortly after 5 o’clock that afternoon.

34. A little after midnight on 19 November 2018 Alexander Owen was walking along the beach at Surfers Paradise. He saw something on the sand just below the waterline that he at first thought was a doll. On approaching, he realised that it was a child, lying naked, face down on the sand. He called the emergency operator for help and police officers quickly attended. Although the officers administered CPR to the baby, ambulance officers who attended soon after could see that the baby was cold and stiff and displaying no signs of life. Emergency treatment was administered nevertheless, but the baby was not able to be revived, and life was declared extinct as soon as a doctor arrived. Treatment was discontinued.

35. At about that time, the early hours of 19 November 2018, police at Broadbeach received calls about a male behaving aggressively towards or assaulting a female. The officers who responded to the calls found the accused and JM asleep on the street in Broadbeach with their son. JM had bruising to an eye. They were both taken into custody.

36. One of the Queensland Police officers who had intervened with the accused and JM on 16 November 2018 and insisted that they move to accommodation appropriate for children, Senior Constable Zairis, was on duty in the early hours of 19 November 2018 and monitored the report of the baby’s discovery. He thought it was possible that the baby was one of the two children he had seen a couple of days previously, and inquiries were made in that regard. Another of the officers who had dealt with the family on 16 November 2018, S/C Bisa, was able to identify the body found on the beach as that of Baby Q.

37. After determining that the baby was that of the accused, S/C Zairis and S/C Ayers approached JM, who was then at the Watch House. She was placed under arrest in connection with the death of the baby. JM told the officers that her daughter had been “given to the people of the land”.

38. The accused, who was also still at the Watch House, was arrested by other officers in connection with his daughter’s death. He was cautioned, but said nothing, and appeared disinterested.

39. When in a cell alone at Southport Watch House the accused was recorded referring to his daughter being “murdered”. He also said:

“She was a bad disease [Baby Q]”;

“At least I have done a good deed… and the Lord say that too, I done the right…”;

“She would have turned one, o mate, if she had turned one, i[t] would have been the fucking end of this fucking earth […] I give up, that’s it, job done. I killed my own daughter… I’m happy….that’s it. No-one cannot forgive me, but I did it for the sake of ladies, the Elders and the little darlings. So. I deny that I killed her. I had to. At least I tried.”

40. Later he said to himself:

“At least I destroyed the most dangerous thing throughout the whole entire world. So if he thinks … I answer to my God, not man. […] She shouldn’t even be called a human being. They are lucky I killed her. She is trouble. I had to figure out what to do.”

41. When a Queensland Police undercover operative entered the accused’s cell, the accused told the officer that it was his “first time” in the cells, for “killing my own flesh”. Naming her as Baby Q, the accused said that he “murdered” her “for the sake of this land, for this world”. He said:

“So I saved my son. And sacrificed my daughter for the sake of all the children of this world. If she would’ve turned one all hell will break loose. She’s a corruption”.

42. Again referring to the killing of his daughter as a sacrifice, the accused described her as “the queen of fuckin’ Satan”. He said he “threw her” and “gave her to the sea”. Referring to Tweed Heads he said:

“Yep, that’s where I threw her. In the river”.

43. Relevant experts who were consulted as to the movement of the river and ocean currents confirmed that something thrown into the Tweed River at Tweed Heads would have been borne north by currents and wave action to the beach at Surfers Paradise.

44. During the afternoon of 19 November 2018 the accused was interviewed by Queensland Police. He told Detective S/C O’Dell and S/C Jeffery that Baby Q “was a corrupt girl” and that “God had told me to throw her, on a rainy day. My prophecy was to take her life, which I will do time for”. He repeatedly told the officers that he wanted to plead guilty, but said:

“I done it for the sake of this world”.

45. He continued:

“I had to do it but you know, I would rather do time for youse than let her walk, cause she’s…. Read the revelation in the end of the Bible there you know, there will be a woman, that’s her there, it’s my little girl [Baby Q]. […]

I took her out to the river and threw her in and that’s it. And I laid down on my face down and I asked God, please don’t forgive me, forgive them. And I threw her for the sake of this world ‘cause she’s a corruption, you know, she’s a corrupt child. If she turned one youse wouldn’t stop her, but thank God I got rid of her just before Christmas.”

46. He said that he had thrown his daughter into the river at Tweed Heads on the previous Saturday [17 November 2018].

47. A post mortem examination of Baby Q conducted by Dr Andrew Kedziora on 20 November 2018 was not able to determine the cause of death, although death by drowning is indicated. Minute particles of sand were found in the baby’s lungs and sand debris was noted in her mouth, pharynx, larynx, trachea, and oesophagus. The skin on the baby’s hands and feet was wrinkled, consistent with immersion. Water was found in both lungs. A foamy discharge or froth had been observed leaking from the baby’s mouth when she was found on the beach. These features are all consistent with a drowning death, although some other signs expected to be present with a death by drowning were not seen.

48. The accused was extradited to New South Wales on 21 November 2018 where he was charged with his daughter’s murder.

Conclusions as to the Death of Baby Q

49. It is beyond dispute that, on 17 November 2018, at Tweed Heads, the accused voluntarily did an act which caused the death of his daughter Baby Q when he bundled her against his body and took her to the river bank, where he threw her into the Tweed River.

49. Although the exact cause of the baby’s death is undetermined, it is clear that she died either by drowning, (that being the most likely mechanism) or by suffocation when the accused held her in a blanket pressed against him. Either way, her death was caused by a deliberate act of the accused.

The Defence of Mental Illness

51. Having determined that the accused did a deliberate act that caused the death of his daughter, it is necessary to consider whether the accused is criminally responsible for his act.

Legal Matters Concerning the Defence

52. The defence of mental illness is a defence that gives rise to an onus on the accused to prove on the balance of probabilities that he is not criminally responsible for his act. Where the defence of mental illness is raised, it is necessary to first consider whether the Crown has proved to the requisite standard whether the accused deliberately, or voluntarily, did the act or acts charged. I have concluded that he did. It is next necessary to examine the evidence to determine whether the accused can be held criminally responsible for the act or acts: Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28, at 517.

53. What is required to be shown was set out in R v M’Naghten (1843) 8 ER 718 where the Court said (at 722):

“[The] jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

54. The meaning of the expression “disease of the mind” was considered by King CJ in  Radford v R (1985) 42 SASR 266; (1985) 20 A Crim R 388, at 274:

"The expression ‘disease of the mind’ is synonymous, in my opinion, with ‘mental illness’ … I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as disease of the mind as that expression is used in the M’Naghten rules. As Lord Denning pointed out in Bratty v Attorney-General (Northern Ireland) [[1963] AC 386 at 412] … any ‘mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind’.”

55. King CJ continued that, for there to be a disease of the mind, there had to be “an underlying pathological infirmity of the mind”. He said, at 274-275:

“The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called ‘defect of reason’ in the M’Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli.”

56. These statements were accepted as correct by Mason CJ, Brennan and McHugh JJ in R v Falconer (1990) 171 CLR 30; [1990] HCA 49 at 53–54, although it was noted that, where a disorder or disturbance was prone to recur, it may reveal an underlying pathological infirmity.

57. The reference in M’Naghten to the accused not knowing that his act was wrong is often referred to as “the second limb” of the test. The second limb was further explained, to a jury, in R v Porter (1933) 55 CLR 182; [1933] HCA 1 in this way (at 189–190):

“If through the disordered condition of the mind [the accused] could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.”

58. The Court is only concerned with the condition of the mind at the time the act was done, although the accused’s state of mind before and after the commission of the act may inform an understanding of it at the relevant time.

59. In summary, to avail himself of the defence of mental illness the accused must establish on balance that, as a result of a defect of reason arising from a disease of the mind, he did not appreciate the nature and quality of the physical act involved in carrying his daughter to the riverbank and casting her into the water, or, he did not know that his act was wrong according to the everyday standards of reasonable people.

60. Section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) provides for a special verdict where an accused is not criminally responsible. It is in these terms:

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.

61. There are consequences that flow from the return of a special verdict, as provided by s 39 of that Act, and by Division 2 of Part 5 of the same Act. I am aware of those consequences.

Evidence Relevant to the Defence

62. There is no dispute between the parties that the evidence is capable of establishing on balance that the accused was mentally ill when he acted as he did towards Baby Q on 17 November 2018, and he is entitled to the special verdict pursuant to s 38.

63. The Court received evidence from Dr Gordon Elliot and Professor David Greenberg in the Crown case, and Dr Olav Nielssen in the accused’s case. Only Professor Greenberg gave oral evidence, with the balance of the evidence being in written form.

64. Dr Elliot was the first of the expert psychiatrists to see the accused, on 26 November 2018, via an audio-visual link (“AVL”) to Grafton Gaol, where the accused was then being detained. Although the examination was made difficult by the imperfect medium of AVL and the accused’s strong regional accent, Dr Elliot readily concluded that the accused’s presentation was consistent with that of an individual with chronic schizophrenia.

65. The accused volunteered to Dr Elliot that he had “murdered [his] little girl”. He gave a history of an earlier diagnosis of schizophrenia, and a life spent on the streets. The accused’s account was a rambling one wherein:

“[…] he spontaneously revealed an elaborate delusional system. He recounted these beliefs rapidly with prominent forma thought disorder. […] I noted he began to talk about a curse, black magic, and his sister being responsible. He said his partner, who is age 24 and ‘a highly intelligent woman’, also knew his sister was bad. ‘I don’t know how to explain it, but my lady knows how to’.

I asked [RB] for an explanation of black magic, however it was almost impossible to understand him, and I again note it was extremely difficult to hear him. He spoke of things being black in front of him, of his partner seeing visions, and that this has ‘fucked up my life’. He also remarked that his daughter’s body was found in Surfer’s Paradise. He then said he named his daughter after his sister, and repeated that his partner doesn’t like his sister and his sister ‘fucked up my life’. He said there was ‘nothing wrong’ with his daughter, but then referred to her name being somehow evil. He said he, ‘threw her somewhere, in a river, and they found her in Tweed Heads, Surfers Paradise.’”

66. Dr Elliot noted that:

“[…] [RB] referred to voices (auditory hallucinations) telling him to commit the offence. He spoke of God telling him to throw his daughter in the water, or ‘if she had turned one, a lot of shit would have happened…everyone else would have been turned to water…woman with thorns and eight heads my dtr (daughter) would have become so I got rid of her. I shouldn’t have put [I] on that paper as her name. She’s a curse, naming my child with a curse’. He repeated, (albeit in continued thought disorder) ‘I’d rather destroy her, do time for you, than let her live, Amen…you want to taste good food, you wouldn’t even taste good water…something forced me to, and it was raining.’

[RB] made further references to AH (auditory hallucinations) associated with the offence. He told me, ‘A deep voice said “throw her, throw her into the river” so I did, I’m not a murderer, never been a murderer in my life…I loved my dtr but I had to do it for the sake of the world.’ He told me he didn’t know who the deep voice was – ‘I dunno, you tell me, Amen bless us.’”

67. Dr Elliot concluded that the accused had long-standing chronic schizophrenia and was likely to have been actively psychotic immediately prior to his arrest.

68. Professor Greenberg was asked by the Crown to see the accused and assess his mental state. The professor saw the accused on 26 June 2019 and 5 July 2019. He did so with the benefit of thousands of pages recording the information gathered by police relevant to the accused and the death of Baby Q, and the accused’s history of psychiatric treatment.

69. In relation to the alleged offence, the accused told Professor Greenberg that:

“I wasn’t all there in the head. I was drinking. Hanging around with my sister, [the accused’s sister]. She had this thing about putting a curse on me and my lady living on the streets with the kids. The “voices” in my head telling me to go to Tweed Heads. Had an argument with my lady. Been going on for a couple of days. We living on the streets and things were getting out of hand. I was hearing voices to get rid of something that belongs to you. Voice said, ‘Go and grab it and get rid of it. It will be good for the world’. I grabbed the child and take it to the river [sic]. The “voices” said, ‘Okay, you can throw it’. I laid on the grass for about 30 minutes. Then the voice said, ‘You can go now’. The voice said, ‘You saved the world from corruption’. She was putting pressure on me and the lady. I was lost in that time. In a different world. The voices. I had a bit of alcohol and yandi (cannabis). I was off my medication for three years. When I got off the medication, things were okay. I was a parkie, sleeping in the park. Then everything got out of hand.’”

70. He acknowledged having wanted to give his daughter away to others, but said that, having thrown her into the river, he had “done right for the world”. The accused referred to Baby Q as “corrupt”, “horrible”, and “cursed”, and said that she would “turn into a terrible thing” who would “terrorise people’s minds” and be “a curse on this earth”. He told Professor Greenberg that:

“The Lord charged me to destroy my flesh and blood”.

71. The accused told the professor that he had been diagnosed with schizophrenia in his early twenties with a number of admissions to psychiatric hospitals subsequent to the diagnosis. He claimed that he was still hearing voices, and the voices told him he would be in prison for a long time. He said he saw spirits walking past his door at night and tasted rotten garbage in his mouth. He maintained that his daughter had been evil.

72. Professor Greenberg reviewed medical records relating to the accused’s past treatment for his psychotic and schizophrenic illness. The records are voluminous, with the accused admitted to psychiatric facilities on at least 35 occasions since his first such admission, in July 2000, when he was diagnosed with an alcohol induced psychotic disorder. On that occasion the accused presented with auditory hallucinations and reported suicidal thoughts, and homicidal thoughts directed to family members.

73. Admissions following psychotic episodes were regular thereafter. Such admissions occurred in July 2000 (on two occasions that month); November 2000, and December 2001 (on two occasions, with the accused remaining hospitalised until January 2002). During the second of the December 2001 admissions a diagnosis of schizophrenia was made. The accused had presented on that occasion with auditory hallucinations and delusions telling him to kill a baby.

74. In October 2002, the accused was admitted with a diagnosis of schizophrenia, claiming to be Jesus with a mission to save the world. In March 2003 the accused was again admitted, claiming to hear voices ordering him to kidnap a baby from “below Rangoon” and drown it, and kill a baby and himself. Other admissions occurred in August 2003; October 2003 (the only NSW admission); January 2004 (twice); April 2004; May 2004; July 2004; October 2004; February 2006; March 2006 (twice, with hallucinations about a man eating a baby on the second admission that month); September 2006; February 2007; March 2008; July 2008, with “command hallucinations” about killing his unborn baby; August 2008, with delusions about “terminating” a baby; December 2008; May 2009; July 2009; March 2010 with auditory hallucinations commanding him to kill people; June 2010; November 2010; February 2011, on three separate occasions; July 2011; September 2011, remaining an in-patient until January 2012; March 2012; May 2012; November 2012; February 2013; and April 2013.

75. Throughout these years recurring among the delusions reportedly suffered by the accused were hallucinations of being commanded to kill people and to kill a baby, delusions concerning black magic, spirits, and elders and, curiously, the singer Britney Spears.

76. A period of sporadic outpatient care followed with the accused regularly noted to be consuming substantial amounts of alcohol, such as four litres of wine each day, together with regular abuse of cannabis. A correlation was noted between consumption of alcohol and cannabis and worsening symptoms of schizophrenia with increased aggression. The accused was frequently assessed as violent, aggressive, and impulsive, and as posing a danger to others. Numerous Involuntary Treatment Orders were made but regular treatment and follow up was frequently frustrated by the accused’s itinerant lifestyle and failure to present for medication to be administered. His occasional moves between states complicated the situation, with the efforts of mental health services to track and treat the accused made almost impossible by the accused’s transience.

77. On admission to custody following his arrest for his daughter’s murder, the accused was psychotic. He was diagnosed with a substance use disorder and schizophrenia, with persecutory delusions and auditory hallucinations. He told a number of doctors who examined him that his daughter had been bad. He was prescribed anti-psychotics. Despite regular treatment, his symptoms endured.

78. Professor Greenberg’s opinion is that the accused has a chronic schizophrenic disorder, with a well-documented and lengthy history of alcohol and cannabis abuse. He concluded that:

“I am of the opinion that [RB] qualifies for a legal concept of ‘disease of the mind’. [RB] has a Chronic Schizophrenic Disorder which is a ‘mental illness’ with psychotic symptoms (such as paranoid delusions and auditory hallucinations).

During my psychiatric interviews, [RB] presented with an elaborate complex paranoid delusional (false beliefs) system involving his sister, [the accused’s sister] whom he believes put a curse on him and his family. He believes she blocked him with bad vibes and was trying to split up his family. He believes that she put a curse on Baby Q to make her a corrupt child. In addition, he reports hearing “voices” (auditory hallucinations) telling him to get rid of something that belongs to him and telling him to throw her into the river. He also has a belief that this act of throwing Baby Q into the river would be good for the world and save the world from corruption. He believed the child was bad, deviant and would corrupt people because she was evil. He believed and continues to believe that when the child got older, it would be a terrible thing because the child would corrupt girls’ and boys’ hearts. He justifies his actions that he was saving people’s lives and saving the world to get rid of the curse. He stated he done right for the world and did it for the people. He continues to present with residual psychotic symptoms during both my psychiatric interviews.

I’m of the opinion that at the time of the alleged offence, [RB] was labouring under defect of reason caused by disease of the mind.”

79. Even after regular treatment in custody the accused continues to express delusional thoughts. Professor Greenberg observed that:

“These ongoing psychotic beliefs, in my view would indicate that his justification, reasoning and motivation for throwing the child into the river was more than just a lifestyle choice, but flowed directly from his psychotic symptoms namely delusions and hallucinations. The additional information of him having predated delusional beliefs about babies and killing babies reinforces my opinion.

I am therefore of the opinion that [RB] did know the nature and quality of his act at the time of the alleged offence.”

80. Although the professor considers that the accused was aware that his act cause Baby Q’s death and that it was legally wrong to kill his daughter, and he understood that his actions were likely to expose him to trouble with others, Professor Greenberg is of the view that the accused did not know that it was morally wrong to act as he did. On the contrary, the professor concluded that the accused thought his conduct was justified, and necessary to save others.

81. Dr Nielssen is of the same opinion as Professor Greenberg. He saw the accused on 5 December 2018 and noted in his report of 6 December 2018, Ex. 1, that, during the consultation, it was “soon apparent that [RB] was affected by an acute exacerbation of a chronic schizophrenic illness”. The accused’s symptoms were typical of schizophrenia and he expressed bizarre delusional beliefs concerning his daughter. Dr Nielssen observed:

“In its typical form, schizophrenia is a neurodegenerative affecting the frontal and temporal lobes of the brain, which produces a pattern of abnormality of mind that is recognised in law to be a disease of the mind. At the time of the offences [RB] had a defect of reason in the form of the delusional belief that his daughter was cursed, and that he had to kill her to save other people and the world from some kind of natural catastrophe, together with the grossly impaired capacity for logical thinking that typically accompanies an acute exacerbation of schizophrenia.

He was aware of the physical nature and effect of his act in throwing his seven [sic-nine] month old daughter into the water, although he reported being directed to do so by an hallucinated voice, and feeling as though his actions were under the control of an external force. [RB] recognised that his actions were wrong in law, and was also distressed when reflecting on the fate of the child. However, he was deprived of the capacity to recognise that his actions were morally wrong, because of the effect of a persisting delusional belief that the child was somehow cursed, and that by killing her he would save other people and the world from a worse outcome.”

Finding with Respect to Mental Illness Defence

82. There is no conflict in the expert evidence as to the accused’s schizophrenic condition, and his psychotic and delusional state at the time of Baby Q’s death. The Court would need a clear and rational reason for rejecting the expert evidence on that point, if it were to do so. The evidence cannot be rejected in the absence of other material which casts some doubt on it: see R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20; (1963) 81 WN (Pt 2) (NSW) 44 at 51; Taylor v R (1978) 45 FLR 343; 22 ALR 599; R v Michaux [1984] 2 Qd R 159; (1984) 13 A Crim R 173, and R vTumanako (1992) 64 A Crim R 149. There is no evidence to suggest other than that the accused was severely mentally ill when he threw Baby Q into the Tweed River.

82. I accept the evidence of Professor Greenberg and Dr Nielssen that the accused was ill with schizophrenia, a disease of the mind, at the relevant time, such that he was not able to judge the moral wrongfulness of his acts.  The accused’s acts of themselves point to mental illness, as does his conduct and presentation when arrested and interviewed by police on 19 November 2018. All of the expert and other evidence falls one way.

83. Although in my conclusion the accused’s symptoms and psychosis were unquestionably made worse by his abuse of alcohol and drugs, that does not discount the role of his enduring mental illness. His thought processes surrounding Baby Q were paranoid and psychotic and, under the sway of that psychosis he acted as he did on 17 November 2018.

84. On the balance of probabilities I find that, on 17 November 2018 when the accused caused the death of Baby Q, by his deliberate act, he was labouring under such a defect of reason from a disease of the mind, schizophrenia and its effects, that he did not know that what he was doing was wrong in accordance with ordinary standards of right and wrong adopted by reasonable people.

85. He cannot be held criminally responsible for his act.

86. The events of 17 November 2018 must be considered a terrible tragedy by which the life of a baby described by others as happy and beautiful was taken from her.

Verdict

88. With respect to the charge that, on 17 November 2018, at Tweed Heads in the State of New South Wales, the accused murdered Baby Q, I find the accused not guilty by reason of mental illness.

ORDERS

89. The Court makes the following orders:

1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty by reason of mental illness is returned with respect to count 1 of the indictment of 3 August 2020.

2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), RB is to be detained in a correctional facility, or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law.

3. I direct that the Registrar notify the Minister for Health of these orders.

4. I direct that the Registrar notify the Mental Health Review Tribunal of my verdict and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and orders, a copy of the indictment, and copies of trial exhibits A51, A53, A54, A57, B1–B4 and Exs. 1 and 2.

**********

Amendments

06 November 2020 - Anonymised name in paragraph 66.

Decision last updated: 06 November 2020