R v Rigney
[2025] SASC 80
•30 May 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v RIGNEY
Criminal Trial by Judge Alone
[2025] SASC 80
Reasons for Decision of the Honourable Justice Bampton
30 May 2025
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE
Accused charged with murder – accused pleaded not guilty by reason of mental incompetence – investigation under Part 8A of the Criminal Law Consolidation Act 1935 (SA) – Court determined to proceed first with trial of the objective elements – finding recorded that objective elements established beyond reasonable doubt – whether accused mentally incompetent to commit the offence.
Held: Presumption of mental competence not displaced.
Criminal Law Consolidation Act 1935 (SA) Part 8A, ss 269A, 269C, 269D, 269G; Mental Health Act 2009 (SA) s 56, referred to.
R v Bonython (1984) 38 SASR 45; Christie v The Queen [2005] WASCA 55; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; HG v The Queen (1999) 197 CLR 41; Ramsay v Watson (1961) 108 CLR 642, considered.
R v RIGNEY
[2025] SASC 80Criminal: Trial by Judge Alone
The residents of Goodman Avenue, Kilburn
Ms Rigney’s movements on 7 December 2018
Ms Rigney’s attendances at Cash Converters and Service SA
Ms Rigney’s attendances at the Luis premises
The attempts to raise Maria Luis and Chico Luis’ return
Ms Rigney stabbed Maria Luis
The arrest of Ms Rigney
Ms Rigney’s police interviews on 7 and 8 December 2018
DNA analysis
Ms Rigney’s personal circumstances and mental health history
Ms Rigney’s admissions for mental health issues prior to 7 December 2018
Ms Rigney’s mental health history following her arrest
Fitness to plead and mental competence
“A tiger by the tail”
The trial pursuant to s 269G of the CLCA
The test for mental competence
Intoxication excluded
Ms Rigney’s mental impairment
Dr Nambiar
Dr Nambiar’s report dated 26 March 2020
Dr Nambiar’s report dated 20 July 2020
Dr Nambiar’s report dated 8 February 2021
Dr Nambiar’s report dated 28 April 2021
Dr Nambiar’s report dated 26 July 2021
Dr Nambiar’s evidenceCross-examination of Dr Nambiar
Dr Ferris
Dr Ferris’ reports dated 21 August and 20 September 2020
Dr Ferris’ report dated 23 March 2021
Dr Ferris’ report dated 30 April 2021
Dr Ferris’ report dated 26 July 2021
Dr Ferris’ evidenceCross-examination of Dr Ferris
Dr Furst
Dr Furst’s report dated 2 May 2022
Dr Furst’s evidence
Cross-examination of Dr Furst
Prof Coyle
Prof Coyle’s report 28 July 2022
Prof Coyle’s consideration of Dr Nambiar’s reports
Prof Coyle’s consideration of Dr Ferris’ reports
Prof Coyle’s consideration of Dr Furst’s report
Dr Nambiar’s report dated 10 August 2022 responding to Prof Coyle’s report
Dr Ferris’ report dated 15 August 2022 responding to Prof Coyle’s report
Dr Furst’s report dated 22 August 2022 responding to Prof Coyle’s report
Prof Coyle’s evidence
Cross-examination of Prof CoyleRe-examination of Prof Coyle
Prof Morris
Prof Morris’ reports dated 22 August 2022 and 28 August 2022
Dr Ferris’ report dated 29 August 2022 responding to Prof Morris’ report
Prof Morris’ evidence
Cross-examination of Prof MorrisRe-examination of Prof Morris
Defence submissions
Diagnosis of mental impairment
Purposeful conduct
Motivation for the stabbing
Ms Rigney’s lack of memory of the stabbing
Absence of self-report from Ms Rigney regarding symptoms during the stabbing
Expertise and experience of Prof Coyle and Prof Morris
Dr Nambiar’s change of position
Ms Rigney’s false account of the stabbing
Dr Ferris’ change of positionAdmissibility of Dr Ferris’ evidence regarding memory
Prosecution submissions
Collateral evidence supporting mental competence
Criticisms of Prof Coyle and Prof Morris
The psychiatrists called by the prosecution
Discussion
Conclusion
BAMPTON J: Maria Luis and her husband, Francisco (“Chico”) Luis, were known by their neighbours as the local cannabis dealers. For many years, they lived together in a semi‑detached house on Goodman Avenue, Kilburn, out of which they transacted business between 9:00 am and 9:00 pm. Chico Luis told South Australia Police (“police”) his wife took care of the cannabis sales, which involved selling bags to people she knew and trusted. He also reported Maria Luis having told him she did not sell cannabis to Aboriginal or young people.
Maria Luis was killed near the front door of her home on 7 December 2018 following the infliction of 34 stab injuries by Cynthia Rigney (“the stabbing”), who has been charged with her murder. Ms Rigney, who also lived on Goodman Avenue, has treatment-resistant schizophrenia. She says she has no memory of the stabbing, and that she was mentally incompetent as defined by s 269C of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) at the time of the stabbing.
The residents of Goodman Avenue, Kilburn
Noel Uhe was another Goodman Avenue resident. He reported that he was aware Maria and Chico Luis sold cannabis from their home, having himself purchased small plastic seal bags of cannabis for $50 each from them. He recounted attending at the Luis front door and being served by either Maria or Chico Luis, on their front porch. Noel Uhe said Ms Rigney had asked him to get her some cannabis from Maria and Chico Luis but denied ever doing so. Another neighbour reported being asked by Ms Rigney in early November 2018 to buy cannabis from Maria Luis for her. The neighbour told Ms Rigney she did not know Maria Luis and did not accede to the request.
On about 2 or 3 December 2018, Kirsty Francis, a neighbour of Maria and Chico Luis told police she saw Ms Rigney screaming and approaching the Luis front porch. Ms Francis said she confronted Ms Rigney and the following exchange took place:
Ms Francis
“snap out of it, that is [someone’s] mother, have some respect”
Ms Rigney
“are you starting on me”
Ms Francis
“whatever you want to call it, stay the fuck away from her house”
Ms Rigney
“well can you get me a bag then”
Ms Francis
“no”
Ms Francis inferred Ms Rigney was referring to a bag of cannabis, as she was aware Maria Luis sold cannabis but never to young people.
Several of Ms Rigney’s neighbours, as well as visitors to the area, have provided accounts of Ms Rigney’s erratic and aggressive interactions with them during the time she lived on Goodman Avenue prior to 7 December 2018.
Ms Rigney’s movements on 7 December 2018
Ms Rigney’s attendances at Cash Converters and Service SA
On 7 December 2018, Ms Rigney attended Cash Converters, Prospect to obtain a cash advance loan. She was informed she would require 100 points of identification to apply for the loan. By reference to the statement of Blake Horder sworn on 4 March 2019, Ms Rigney received a MyGov security code by text message on 7 December 2018 at 12:02 pm and a text message from Centrelink at 12:31 pm confirming she had registered for “Centrelink self service”. Ms Rigney then made her way to Service SA, Prospect to obtain further documents to satisfy the 100-point identification requirement.
At 12:51 pm, Ms Rigney was captured on CCTV at Service SA, Prospect wearing a green “Stussy” T-shirt, light and ripped denim jeans, black shoes, a black Nike cap, and white headphones. She was carrying a large black handbag and another large dark bag was slung over her shoulder. She left Service SA at 1:05 pm.
Ms Rigney returned to Cash Converters and presented documentation obtained from Service SA, telling a Cash Converters employee she required the cash advance that day. The Cash Converters’ system lists the reason for Ms Rigney’s loan application as “for a family member’s funeral”.
Ms Rigney was required to apply for the loan on a tablet in Cash Converters, which involved providing her Centrelink and MyGov details, income and expenses, then nominating a bank account for payment of the advance and direct debit of repayments. Upon completing the application, a 4-digit SMS signing code was sent to Ms Rigney’s mobile phone by Cash Converters at 1:50 pm. Ms Rigney read the code to a Cash Converters employee and thereby finalised the cash advance contract at 1:52 pm, whereupon she received a cash advance of $200.
Ms Rigney’s attendances at the Luis premises
Just after 2:00 pm on 7 December 2018, Chico Luis left his home, pulling shut and locking the front wooden door behind him, leaving Maria Luis at home with their dogs. He walked to the Kilburn RSL to meet up with friends.
Following Chico Luis’ departure, CCTV cameras located on a property across the road from and facing the Luis premises (“the CCTV cameras”) captured:
1.Ms Rigney walking east on Goodman Avenue at 3:36 pm, then into the front porch of the Luis premises, before going out of sight. The front door of the Luis house was accessed via the porch, comprising what appears to be a white framed window atop several courses of bricks. The western half of the window is covered by what appears to be a screen precluding the CCTV cameras from capturing the front door.
2.Ms Rigney leaving the front porch of the Luis premises at 3:38 pm, walking down the driveway, then west on Goodman Avenue. As Ms Rigney walks away, she turns a supermarket trolley upside down on the footpath outside a property to the west of the Luis premises.
3.Ms Rigney walking east along Goodman Avenue at 4:50 pm towards the Luis premises, wearing a green T-shirt, denim shorts and white shoes, with a large black bag slung over her right shoulder and a black backpack on her back. She is captured retracing a few steps and stopping to remove the backpack, after which she places it over the fence and onto the front lawn of a property to the west of the Luis premises.
4.Ms Rigney entering the front porch of the Luis home at 4:51 pm and going out of sight.
5.A small dog exiting the front porch at 4:52 pm and briefly wandering around the front garden before apparently re-entering the front porch.
6.A small dog exiting the front porch at 4:53 pm and briefly wandering around the driveway before returning to the front porch area.
7.Ms Rigney exiting the front porch at 4:54 pm, briefly stopping in the driveway while appearing to look at the ground, then walking quickly down the driveway out of the Luis property, turning to her right and heading west on Goodman Avenue without retrieving the backpack she had deposited on the front lawn of the nearby property.
8.Darren Young, a friend of Maria and Chico Luis, who had been drinking with Chico Luis at the RSL, arriving at the Luis premises at 4:58 pm. He is captured going into the front porch and out of sight, returning to the driveway and appearing to attempt to open the large double gates across the driveway between the house and the eastern fence line. He can then be seen returning to the front porch, hurriedly leaving the front porch, jumping the double gates by climbing on a rubbish bin, going out of sight, jumping back over the double gates, returning to the front porch, exiting the front porch and running down the driveway, then west on Goodman Avenue.
9.Maria and Chico Luis’ grandson arriving at 5:04 pm in a vehicle driven by his mother. He can be seen entering the front porch, exiting, looking through the front windows of the house to the west of the front porch, checking the double gates, getting back into the vehicle, and being driven away.
The attempts to raise Maria Luis and Chico Luis’ return
Darren Young told police that when he attended the Luis premises at 4:58 pm, he saw one of Maria and Chico Luis’ dogs in the front yard, which was unusual. He knocked on the front door and yelled out to Maria Luis. As he did this, he heard groaning from inside the house and noticed blood on the porch. He said he knew something was wrong, so he jumped the double gates across the driveway and attempted to get into the house by the back door. As the back door was locked, he yelled out again to Maria Luis but could not hear anything in response. He went back to the front door and yelled “open the front door please”, whereupon he heard groaning again. As he was unable to gain entry, he texted a friend asking them to inform Chico Luis that something was wrong. He ran from the premises and enlisted the help of Jacquob Cronin to drive and collect Chico Luis, who had progressed from the Kilburn RSL to the Albion Hotel on Churchill Road. Jacquob Cronin picked up Chico Luis on George Street, which was around the corner from the Albion Hotel, and drove back to the Luis home. Chico Luis gained entry to his house using his key.
Upon entry, Chico Luis and Jacquob Cronin found Maria Luis lying on the living room floor covered in blood, but still alive. They attempted CPR. Darren Young, who had run back to the Luis home, called for an ambulance. Police officers arrived soon after followed by South Australian Ambulance Service (“SAAS”) and Medstar. Maria Luis was pronounced dead at 5:55 pm. Her death was caused by blood loss in conjunction with impaired breathing caused by stab wounds to her chest involving the lungs.
No person other than those detailed in [11] above was captured by the CCTV cameras attending the Luis premises on 7 December 2018 between Chico Luis’ departure and his return with Jacquob Cronin.
Ms Rigney stabbed Maria Luis
Between going out of sight upon entering the Luis front porch at 4:51 pm and emerging minutes later, it appears Ms Rigney stabbed Maria Luis’ head, neck, and chest, resulting in 34 incised injuries assumed to be inflicted by a knife with a single cutting edge. A stab wound to Maria Luis’ left breast cut chest cage cartilage and would have been inflicted with moderate force. The remaining stab wounds would have been inflicted with mild force if inflicted with a sharp pointed knife with a cutting edge. The article used to stab Maria Luis has not been located.
The arrest of Ms Rigney
When police attended Ms Rigney’s unit following Maria Luis’ death on 7 December 2018, she did not open the door. STAR Group officers arrived at 10:51 pm and forced entry, finding Ms Rigney asleep under a blanket in her bedroom with a plastic resealable bag containing a small amount of cannabis attached to her leg. Ms Rigney was arrested and charged with Maria Luis’ murder.
Ms Rigney’s police interviews on 7 and 8 December 2018
Ms Rigney was interviewed following her arrest on 7 December 2018, during which she appeared very drowsy and was slow to respond to police questions, causing the arresting officer to state that she appeared to be under the influence of alcohol, drugs or both (“the first police interview”). The pharmacologist Prof Jason White stated, having viewed the recording of the first police interview, that Ms Rigney appeared very drowsy, but was capable of responding and showed normal cognitive function. He suggested the drowsiness could have been caused by a drug or drugs, but said there was otherwise no evidence that she was under the influence of any drug.
During her second interview on 8 December 2018 (“the second police interview”), Ms Rigney appeared more lucid and engaged. Upon being told she did not have to answer any questions, Ms Rigney said:
No she had someone inside her house and she had blood on the door and then I put my hand on the door I went inside she gave me a bag I came back outside and then the girl was screaming and then I just left.
She repeated that she went:
… to the [dealer’s] house and she had someone inside with her and then I asked for a bag so she let me inside she gave me a … fifty dollar bag and then she got stabbed in front of me and then I yeah I left.
She told police, “[i]t looked like [she was stabbed with] a knife but it could have been anything”. She also said she only ever went into the first room of the house and that she only wanted a $50 bag, which she got.
Ms Rigney admitted having worn denim shorts and a T-shirt on the previous day and acknowledged owning a backpack consistent with the one deposited on the front lawn of a neighbouring property to the Luis premises. She said she was only at the Luis home for thirty seconds. Ms Rigney was asked by the interviewing officer whether she killed Maria Luis, and she said, “[n]o way bro”. She was then asked if she purchased any cannabis from Maria Luis, and the following exchange occurred:
Ms Rigney: The bag you brang it in when we got arrested last night
Interviewing officer: That’s not a fifty dollar bag that was a tiny little bit in it
Ms Rigney: I smoked it I was straight up stoner bro that’s all I do is smoke weed man I feel sorry for this [girl’s] death but I […] I don’t know what to do about it
Ms Rigney also told police that Maria Luis was a dealer, that she purchased cannabis from her weekly, including in the week prior to the stabbing, and that she never had any conflict with her. She said when she first started going to buy cannabis, Maria Luis told her that she looked “a little bit too young maybe [she] shouldn’t sell to [her]”. Ms Rigney said she responded, “honey I’ve got my ID with me I’ve got my age”. Ms Rigney said thereafter, Maria Luis did not mind selling to her.
DNA analysis
DNA reference samples were obtained from a post-mortem blood sample from Maria Luis, and mouth swab kit samples from Chico Luis and Ms Rigney. These reference samples were compared with the DNA extracted from swabs of bloodlike staining on surfaces and items at the Luis premises, as well as on other items of evidence submitted by the crime scene investigators for analysis.
Analysis of the bloodlike stains found on one of Ms Rigney’s socks, the denim shorts she was wearing at the time of her arrest, a green “Stussy” T‑shirt located on her bedroom floor, and her forehead, were all found to have a mixed DNA profile of three contributors. The results revealed a likelihood of greater than 100 billion to one for the proposition that Maria Luis had contributed DNA to the profile.
Police searched Ms Rigney’s premises and seized multiple knives secreted in the bedroom and lounge room, as well as a black handbag spattered with a bloodlike stain. Police also located recently burnt material in Ms Rigney’s yard. Swabs of the bloodlike stains on the handbag were found upon analysis to contain a mixed DNA profile of three contributors. The analysis revealed a likelihood of greater than 100 billion to one for the proposition that Maria Luis had contributed DNA to the profile.
Ms Rigney’s personal circumstances and mental health history
Ms Rigney, who is Aboriginal, was born on 23 February 2000 and had a childhood marred by abuse and neglect. Her father had little contact with her and her siblings due to reported issues with violence, drugs, and alcohol. Ms Rigney’s mother was the subject of several notifications to child protection services arising from her intravenous drug use, mental health issues, neglect of her children, and placing the children at risk of violence, including by a man living in their home.
Between 2003 and 2005, Ms Rigney and her two siblings were subject to various short-term care and protection orders in Victoria and South Australia. In September 2005, the South Australian Department for Child Protection (“DCP”) placed the three children under the guardianship of the Minister until they reached the age of 18. Until 2016, Ms Rigney’s primary placement was with her maternal grandmother in Murray Bridge, supplemented by approximately 95 respite care placements in 21 households. She was subject to short-term, emergency, and residential care placements from October 2016.
Ms Rigney made a complaint to police in 2013 in respect of an alleged sexual assault committed against her in 2009. Police notes record that Ms Rigney’s identification of her alleged assailant was flawed.
In June 2017, whilst pregnant, Ms Rigney moved to the supported accommodation facility, Hannah Place, for minors under State guardianship who are pregnant or need parenting support. Ms Rigney gave birth to a son on 22 August 2017, fathered by her boyfriend. Her son was removed from her care at six weeks of age because of her mental instability.
Ms Rigney reported to the psychiatrists and psychologist who assessed her for the purposes of this matter that she was subject to sexual abuse, including rape, throughout her childhood.
Ms Rigney’s admissions for mental health issues prior to 7 December 2018
From the age of 16, Ms Rigney had multiple admissions to mental health services. Ms Rigney’s medical records note that on 19 December 2016 at 2:00 am, she was arrested after having been missing for some months. She was subsequently released on bail but was left in the street when she refused to be collected by her DCP carer. Police then noticed her bashing an external door of the City Watchhouse and ranting incoherently. Police reported she was physically and verbally abusive, spitting at them, and running in front of traffic. Consequent upon this observed behaviour, Ms Rigney was taken to the Women’s and Children’s Hospital (“WCH”) under the care and control power prescribed by s 56 of the Mental Health Act 2009 (SA).
Ms Rigney was assessed at the WCH by a mental health nurse as presenting with no psychotic features, thought disorder or depression, and denying suicidal intent. It is recorded she was discharged into the care of the DCP and that no mental health input was deemed necessary at that point.
On 20 December 2016, Ms Rigney was admitted to the WCH Boylan Ward, a psychiatric inpatient facility for children and adolescents. It is recorded that she was admitted to the Boylan Ward under an inpatient treatment order (“ITO”) in the context of aggressive and disorganised behaviour at her emergency accommodation. She presented as irritable, sarcastic, and labile in mood. She remained in hospital for 24 hours for observation due to “some underlying paranoid themes and disorganisation of thoughts”. It is recorded that these symptoms did not persist in that she presented as organised in her thoughts, with conversation focused on her needs being met, and no evidence of any underlying psychotic illness or major mood disorder. It is also recorded that she remained belligerent and demanding throughout the admission, and that her behaviour could not be redirected or deescalated. The record refers to an incident where another patient told Ms Rigney to lower her voice, to which she responded by becoming agitated and charging at the patient, scratching his face. When staff tried to intervene, Ms Rigney punched a nurse in the abdomen. It is recorded that she has an enduring pattern of aggressive behaviour based on her impulsivity and distress intolerance, and that this behaviour may have been exacerbated by substance withdrawal, although it could not be confirmed as Ms Rigney refused to provide a urine sample. It is recorded that she was discharged into police custody and that the benefits of future admissions would need to be evaluated and considered against the risk to herself and others. The WCH final separation summary records that she has a background of complex trauma and disorganised attachment, which manifests as recalcitrance and behaviour/emotional dysregulation. It is further recorded that these issues are exacerbated by substance use and a chaotic lifestyle.
On 27 January 2017, Ms Rigney was taken to the WCH by SAAS after being aggressive at home, having had an argument with her boyfriend, breaking a window, and being difficult to calm down. It is recorded that she was seven weeks’ pregnant. It is also recorded that she had directed abuse towards her carer, who reported that Ms Rigney had longstanding auditory hallucinations and possible psychotic episodes. Ms Rigney denied psychotic symptoms and insisted she had spoken openly to god and spirits for the majority of her teenage years. There was no evidence of cognitive impairment, and it is recorded that she “[appeared] to have reasonable insight yet poor judgement at times of any distress”. She was discharged into the care of a Hendercare carer.
On 22 March 2017, during an admission at the WCH, Ms Rigney assaulted a caseworker and the police were called.
On 6 May 2017, she was brought into the Flinders Medical Centre by police as she was expressing thoughts of self-harm when arrested.
In carer notes for 9 to 11 July 2017 contained in the WCH records, it is noted that Ms Rigney disclosed to staff at Hannah Place that she was seeing visions of the future and receiving messages from the dead.
On 11 July 2017, Ms Rigney was admitted to the WCH at 31 weeks pregnant. She presented as perplexed and hypervigilant, claiming that she could see visions of the future and receive messages from the dead, and that her music and abilities would change the world. She also described being able to see spirits and having a sense of being watched or followed, appearing fearful that her unborn baby could be harmed. Collateral information revealed that Ms Rigney’s mental state had abruptly changed over the preceding three days, and she admitted that she had been using up to a bag of cannabis per day but had been trying to cut down. It is recorded that these presenting symptoms were against a background of longstanding cannabis use, being away from her partner, living in new accommodation, and complex developmental trauma. She was detained under an ITO and admitted to the Boylan Ward. The following day she presented as calm and coherent without obvious psychotic symptoms. She indicated that she was willing to take medication and wished to be discharged from hospital. Accordingly, her ITO was revoked, follow‑up was arranged with the Perinatal and Infant Mental Health Service, and a diagnosis of suspected drug-induced psychosis was made.
Ms Rigney’s son was born on 22 August 2017. It is recorded in the WCH separation summary following delivery that she demonstrated borderline and antisocial personality traits, cannabis dependence, and complex developmental trauma.
On 30 August 2017, the day after her discharge from hospital following delivery of her son, Ms Rigney was again admitted to the Boylan Ward after having reported that spirits were raping her and that her child was dead. On the ward, she was calm and cooperative but spoke about spirits, her belief that they had entered her body, and her connections to the weather. She was administered depot risperidone. She attended court on 1 September 2017 in relation to a 42-day investigation and assessment order regarding her son, and was transferred to Helen Mayo House, a specialist unit at Glenside campus for mothers and babies, for ongoing care.
The WCH record for this admission includes the following:
[Ms Rigney] was seen in July and admitted to Boylan Ward under level 1 ITO due to psychosis, which seemed to resolve fairly rapidly following admission and the commencement of risperidone 1mg. She has repeatedly missed appointments with Eastern CAMHS, where she was referred for follow up, and ultimately was closed to that service as she declined after not attending four scheduled appointments. She has been willing to engage with hospital based services but has a history of poor attendance at appointments. She continued to experience psychotic symptoms during her third trimester of pregnancy and post delivery.
Ms Rigney remained at Helen Mayo House from 1 September 2017 until 5 October 2017. She was again diagnosed with a drug-induced psychosis. It is recorded that her psychotic symptoms were slow to resolve, and she later acknowledged that she had been continuing to use cannabis whilst on the Glenside campus. With treatment and abstinence from cannabis, her mental state is reported to have improved. She demonstrated some warm, loving interactions with her son, but was unable to demonstrate sustained, safe, organised care or an ability to keep her son in mind, and she appeared preoccupied with her boyfriend. She was informed that her son would be placed in kinship care, and she was transferred to the Boylan Ward on 5 October 2017. She was discharged on 11 October 2017. The discharge summary records:
Post delivery, [Ms Rigney’s] mental state worsened rapidly after she was discharged from hospital secondary to illicit drug use. She was admitted to Boylan [W]ard without her baby and subsequently admitted to Helen Mayo [H]ouse once a bed was available on the 1/9/17. Her symptoms were slow to improve and [Ms Rigney] kept using THC while she was on the ward which worsened her mental state. She was placed on an ITO but continued to leave the ward to use THC. Due to ongoing concerns about her capacity to care for [her son], DCP proceeded with an application for GOM 12. [Her son] was removed and therefore, [Ms Rigney] was transferred from Helen Mayo House to Boylan [W]ard for ongoing management.
Under the heading “assessment”, it is recorded that Ms Rigney had a resolving psychosis secondary to sustained drug use. It is recorded that this is against the background of significant childhood trauma, that she is very vulnerable to illicit drugs, and that her symptoms worsened every time she smoked cannabis. She was discharged with Headspace follow-up and a plan to gradually taper her off oral risperidone once she returned to the community, while continuing to administer depot risperidone.
Ms Rigney was admitted to the Boylan Ward again from 21 February 2018 to 22 February 2018, having been detained on a level 1 ITO in Murray Bridge following an assault on her support worker at a bank. She was detained for management of suspected psychosis because of severe agitation, aggression and reported incoherent rambling. On admission, Ms Rigney evaded discussion of the events that led to her admission and acknowledged losing her temper but did not refer to the assault on her support worker. She denied any psychotic symptoms such as hallucinations or delusions. She was considered to have experienced a situational crisis with a violent outburst in the context of personality traits, which predispose her to poor frustration tolerance, impulsivity and risk-taking. In the absence of evidence of active psychosis, she was discharged from hospital.
Ms Rigney was taken to the Modbury Hospital by SAAS on 1 April 2018. The triage assessment records that she was agitated and teary, with disjointed conversation. She stated that she was sexually assaulted by 500 people, her vagina was hanging out, she was stabbed in the back with a needle, and she could not remember the last two days. It is recorded that she was visibly responding to internal auditory stimuli and that she discharged herself against advice.
Ms Rigney was admitted to the Lyell McEwin Hospital from 2 April 2018 to 5 April 2018 and diagnosed with drug-induced psychosis. The separation summary records that her behaviour in the emergency department became increasingly erratic, with her appearing to respond to internal stimuli and attempting to abscond, resulting in a code black. Her urine tested positive to cannabis, methamphetamine, and amphetamine. She was commenced on oral risperidone, placed under a level 1 ITO, and transferred to a psychiatric closed ward at the Lyell McEwin Hospital. It is recorded that she again reported being injected and raped but by day three of her admission, she had settled enough to warrant revocation of the ITO and was moved to an open ward. Following her discharge, it was recommended she have follow-up with community mental health and that she continue to take antipsychotic medication. The Lyell McEwin Hospital separation summary includes the following record:
We suggest [Ms Rigney’s] significant development trauma has led to complex PTSD and personality vulnerabilities, where she tends to decompensate / experience dissociation or re-experience flashback at times of distress. Substance use can also lead to temporary psychosis. Despite [Ms Rigney] currently is stable and having low acute risk, considering her vulnerabilities, she is at chronic risk of misadventure, being abused by others and self harm.
On 14 May 2018, Ms Rigney presented to the Royal Adelaide Hospital (“RAH”) emergency department with a self-inflicted penetrating chest wound, which caused a haemopneumothorax. She was noted to be violent on the ward, requiring ongoing input from the RAH consult liaison psychiatry service, constant one-to-one nursing and a security guard. She threatened physical violence towards staff on multiple occasions and attempted to hit a nurse, with a code black being called for behavioural disturbance. It is recorded she was poorly compliant with her medications, including by spitting out tablets. She was transferred to a psychiatric bed at Glenside Hospital on 8 June 2018 and discharged on 19 June 2018. Her primary diagnosis was drug-induced psychosis. She was noted to be guarded, argumentative, and irritable on the day prior to discharge but compliant with treatment.
On 2 September 2018, Ms Rigney was taken to the Queen Elizabeth Hospital (“QEH”) Crammond psychiatric unit after neighbours reported she had been wandering the streets topless and waving a knife. She is recorded as having been irritable and nonsensical at assessment and required management in the secure unit of the QEH for the first few days of her admission. Her diagnosis was again drug‑induced psychosis, and she was given a loading dose of long-acting antipsychotic medication. She absconded from the ward on 18 September 2018, with her mental state earlier that day noted to have been less inhibited but still mildly euphoric. She was not seen to be hallucinating and denied any thoughts of self-harming or harming others. She was reported as a missing person after failing to return within 24 hours of absconding.
On 24 September 2018, Ms Rigney was found and returned to the QEH, where she expressed a delusional belief that she was pregnant and was subsequently readmitted to the Crammond psychiatric unit, remaining there until 17 October 2018. It is noted that she was difficult to interview, claimed her name was not right, and refused to engage with the clinicians. It is reported that she was angry, dismissive, paranoid, and yelled at staff and other patients. Her mental state gradually improved with treatment, which included her first dose of depot aripiprazole on 8 October 2018. She was placed under a level 1 community treatment order (“CTO”) on discharge, which included an order for the administration of depot aripiprazole every four weeks.
On 19 October 2018, Ms Rigney’s community mental health worker arranged for her to be brought into the QEH by police as she was not engaging in treatment, had ongoing delusions, and posed a risk to herself. She was not admitted.
During a visit to her Goodman Avenue unit by the community treating team (“treating team”) on 7 November 2018, the second depot aripiprazole was not administered as Ms Rigney refused to answer the door. A young woman was heard yelling abuse. Ms Rigney received the second depot aripiprazole on 8 November 2018.
Ms Rigney was detained by police on 12 November 2018 following an incident with her boyfriend during which she allegedly stabbed him. She was taken to the RAH emergency department by police on 13 November 2018, found to be uncooperative and considered fit for police custody. She was released later that day.
On 26 November 2018, Ms Rigney was uncooperative and did not engage with the treating team during an unplanned visit to her home. It is recorded she “exhibited intimidating, threatening, hostile and aggressive behaviour and terminated the [visit] by shutting the door”.
A level 2 CTO was granted on 28 November 2018. A home visit was attempted by the treating team on 6 December 2018 to administer the third depot aripiprazole. One member of the treating team knocked on the front door, called out, and heard music. Eventually, Ms Rigney’s boyfriend came to the door and said he would get her. After a few minutes, Ms Rigney appeared and shut the door firmly without a word. The treating team left and reported her non-compliance.
On 7 December 2018, the treating team again attended Ms Rigney’s home to administer the depot aripiprazole but there was no answer.
Ms Rigney’s mental health history following her arrest
Ms Rigney’s third depot aripiprazole was administered on 9 December 2018 whilst she was in custody following the stabbing.
The following recitation of Ms Rigney’s psychiatric history between her arrest on 7 December 2018 and September 2021 is taken from the forensic psychiatrist, Dr Paul Furst’s report dated 2 May 2022:
Ms Rigney was admitted to the Adelaide Women’s Prison on 10/12/2018 and the admitting nurse noted that she was difficult to assess, but the medical officer the following day found her only mildly uncooperative and to have normal thought content. She was reviewed on 12/12/2018 by Dr Cassie Smith, then a senior forensic psychiatry registrar, who noted that she did not know Ms Rigney, nor with what she had been charged. Ms Rigney was not willing to speak but was observed to “laugh incongruently” and appeared to be responding to internal stimuli when looking into the distance. She was noted to be paranoid and had a fatuous affect. A nursing entry on 17/12/2018 noted that she engaged poorly and provided “inappropriate answers to questions” and was “laughing inappropriately” and appeared to be reacting to internal stimuli. Another nursing entry on 20/12/[2018] noted that she was aggressive and unwilling to talk and later that day it was noted that Department for Correctional Services staff reported “unusual/psychotic behaviour in outside recreation area” and by 2100hrs that day she had been moved to D Wing (maximum security). She was threatening and abusive to nursing staff on 23/12/2018.
She was reviewed by the visiting medical officer on 24/12/2018 and it was noted that she was laughing inappropriately and the content of her speech was [difficult] to follow (suggesting a disorder of thought form) and she expressed paranoid ideas. She was also observed to respond to internal stimuli with impaired insight and judgement.
Ms Rigney was reviewed by Dr Megan Ferris on 03/01/2019. Dr Ferris noted that Ms Rigney was guarded about why she had been [moved] to D Wing and claimed to have no problems, but poor sleep and that she was not getting enough food. She claimed that she had been “nice and calm” and denied being irritable or aggressive. Dr Ferris noted that Ms Rigney was fatuous with frequent unwarranted giggling and intense eye contact at times and at times she appeared to be responding to internal stimuli, despite her denial of hearing auditory hallucinations. Dr Ferris assessed her as likely to have psychotic symptoms, increased her dose of antipsychotic medication and requested collateral information from Headspace.
Nursing staff reviewed her mental state on 12/01/2019 and noted that she was intimidating and believed herself to be pregnant and that she could feel the baby kicking despite having a negative pregnancy test. She demanded an ultrasound test to look for pregnancy. She maintained the same delusional belief the next day and again claimed that she could feel a baby kicking. On 21/01/2019 she was noted to be labile and giggly, naïve to her situation and claimed she suffered from multiple personalities.
She was seen again by Dr Smith on 30/01/2019. She was noted to be highly irritable and aggressive in her responses, was guarded and appeared to be responding to internal stimuli.
Dr Ferris (07/02/2019) saw her again in A wing and again noted that she was irritable and guarded when questioned. Dr Ferris changed her medication. A nursing entry from 11/02/2019 noted that she remained “aloof and disorganised” with some inappropriate laughter. By 28/02/2019 when seen again by Dr Ferris, she was thought to have shown some improvement in her mental state. A nursing entry on 04/03/2019 noted that she reported believing that there was “a spider living in [her] bottom” and that she could not sleep because she was checking the bed for spiders at night. She was reportedly quite fixated on this and would not accept reassurance from nursing staff. She saw Dr Ferris again on 14/03/2019. Dr Ferris noted that she was much less irritable and verbally abusive, but she was still “slightly paranoid”. She continued to report delusional beliefs about spiders to nursing staff on 26/03/2018 and 01/04/2019 and to Dr Ferris on 04/04/2019. By that time Dr Ferris believed her to be suffering from Schizophrenia and that she had shown some response to the prescription of antipsychotic medication.
When reviewed by Dr Ferris on 15/08/2019 Ms Rigney requested a mood stabiliser to help with the “diseases in [her] head” and reported that her mood was all muddled up, she had difficulty attending to her education classes and whilst she denied ever having hallucinations, she was observed to be responding to internal stimuli during her interview and was paranoid about what Dr Ferris was writing in her notes. Dr Ferris noted that Ms Rigney was on the waiting list for James Nash House and that nursing staff reported that she had reported having a spider in her rectum, had been caught smoking a tampon, expressed numerous unfounded somatic complaints and talked about spiders and bugs and that she thought she had HIV. Dr Ferris noted that Ms Rigney’s condition had not responded to trials of aripiprazole, risperidone or paliperidone and therefore warranted a trial of clozapine (the gold standard treatment for Schizophrenia that does not respond to other agents) but that an inpatient admission would be required to start the treatment. She continued to express delusional beliefs about a spider in her rectum when reviewed again on 05/09/2019.
On 15/10/2019 she told a nurse that she believed that the other prisoners had taken a ‘hit’ out on her and she had heard them threatening to ‘rip her cervix out’. She repeated this claim to Dr Condon (Senior Psychiatry Registrar) on 16/10/2019 who assessed Ms Rigney to have schizophrenia with ongoing symptoms and to be in need [of] urgent admission to James Nash House. On 22/10/2019 she was transferred to James Nash House.
She was admitted to James Nash House on 22/10/2019. The separation summary noted that she had multiple previous presentations to ED and admissions to psychiatric units with episodes of erratic, disorganised and aggressive behaviour associated with visual hallucinations and somatic and paranoid delusions. There had been previous reports of thought disorder and delusional beliefs included that she had been injected and raped by 500 men and therefore needed a new vagina and rectum as [her’s] were ‘hanging out’ due to the rapes. She had expressed delusions that she could control the weather through her emotions, that she was a God or that she was part of the Illuminati. She felt that she had been constantly watched and that she was possessed by a demon and that her parents were not her real parents. She had previously expressed delusions of having a spirit jumping in and out of her, raping her and strangling her unborn son, as well as vision of her partner joining the army and dying as a result. On her initial assessment in James Nash House she [was] initially guarded, but reported seeing and hearing ghosts and was fearful of being alone and showering at night. At times she was bizarre in her behaviour and she had … the physical workup required to initiate clozapine. Clozapine was started and titrated up to the therapeutic dose before being discharged back to the Adelaide Women’s Prison on 31/12/2019.
She was readmitted to James Nash House on 11/12/2020 until 25/03/2021. This admission was precipitated by worsening auditory and visual hallucinations prompting Dr Ferris to place her under a Level 1 ITO. On the ward she appeared polite and cooperative and reported auditory and visual hallucinations and delusions about a lady who could see stars almost all of the time. She had poor insight into her illness and required 1:1 nursing. She was difficult to engage on ward and reported that talking about her illness made it worse but reported ongoing auditory hallucinations and various somatic complaints. Her medications (depot zuclopenthixol and oral clozapine) were optimised, but by the time of her discharge she reported that there had been no change in her psychotic symptoms and she was not engaging with the treating team and therefore it was decided that she would be discharged back to the Adelaide Women’s Prison. Interestingly, a CBIS entry dated 18/03/2021indicates that she reported having auditory hallucinations that become worse when she talks about them, ghosts who she saw at the edge of her bed, one who stroked her hair and a female ghost that walked the corridors at night. She reported that she was worried that they would scratch her and said that one [had] tried to rape her in the shower four days earlier, in keeping with her report of groin pain at the time. Nursing staff had reported that she was talking to herself at night and had been verbally aggressive to staff and other patients.
Her CBIS records indicate that she was readmitted to James Nash House on 20/04/2021 due to a deterioration in her mental state. An entry from 18/09/2021 details her mental state and noted that she was appropriate in her behaviour with others with some underlying irritability and she denied having auditory hallucinations and had not been observed responding to internal stimuli.
Fitness to plead and mental competence
Ms Rigney was committed for trial in this Court on the charge of murder. She was not arraigned on her first appearance on 3 February 2020 as her counsel informed the Court of concerns regarding her fitness to stand trial and mental competence to commit the offence.
Thereafter, many reports were prepared concerning Ms Rigney’s fitness to plead and whether the mental incompetence defence was available to her pursuant to s 269C of the CLCA (“the s 269C defence”).
“A tiger by the tail”[1]
[1] The description used by Kelly J during a directions hearing on 28 August 2020.
In his first report dated 26 March 2020, which had been requested by Ms Rigney’s solicitors, the forensic psychiatrist Dr Narain Nambiar considered Ms Rigney was unfit to plead and that the s 269C defence was available to her. However, he altered his opinion in his report dated 20 July 2020, concluding that she was fit to stand trial and the s 269C defence was not available to her. He remained of the view that Ms Rigney was fit to stand trial in his report dated 8 February 2021.
In Court-ordered reports dated 21 August 2020 and 20 September 2020, the psychiatrist Dr Megan Ferris considered Ms Rigney was unfit to stand trial and that the s 269C defence was available to her. Dr Ferris considered Ms Rigney was fit to stand trial in her report dated 23 March 2021, but remained of the opinion that the s 269C defence was available to her.
There then followed a period in which Ms Rigney’s psychiatric condition deteriorated such that both Dr Nambiar and Dr Ferris were unconvinced of her fitness to stand trial, and the May 2021 trial listing was vacated.
In his report dated 26 July 2021, Dr Nambiar determined that Ms Rigney’s condition had improved and that while she was fit to stand trial, she should remain at James Nash House (“JNH”) for the duration of the trial.
In her report dated 26 July 2021, Dr Ferris similarly considered Ms Rigney was fit to stand trial. Dr Ferris also took the opportunity, in assessing Ms Rigney’s fitness, to reassess her mental competence at the time of the stabbing. Dr Ferris reported that having done so, she no longer considered the s 269C defence was available to Ms Rigney.
In a Court-ordered report dated 2 May 2022, Dr Furst reported that Ms Rigney was fit to stand trial and the s 269C defence was not available to her.
A further trial listing in June 2022 was vacated to accommodate counsel availability.
Just prior to the commencement of the adjourned trial on 8 September 2022, Ms Rigney’s solicitors served reports they had requested from the psychologist, Prof Ian Coyle and the psychiatrist, Prof Phillip Morris, both of whom reported Ms Rigney was fit to stand trial and the s 269C defence was available to her.
The following table records the key findings in the reports of Dr Nambiar, Dr Ferris, Dr Furst, Prof Coyle, and Prof Morris received into evidence:
Date Author Opinions 26 March 2020 Dr Nambiar Unfit & Incompetent 20 July 2020 Dr Nambiar Fit & Not Incompetent 21 August 2020 Dr Ferris Unfit & Incompetent 20 September 2020 Dr Ferris Unfit & Incompetent 8 February 2021 Dr Nambiar Fit 23 March 2021 Dr Ferris Fit & Incompetent 19 April 2021 Dr Lowe and
Dr FerrisPsychiatric progress update 28 April 2021 Dr Nambiar Questions Fitness 30 April 2021 Dr Ferris Unfit 26 July 2021 Dr Nambiar Fit but remain in JNH for trial 26 July 2021 Dr Ferris Fit & Not Incompetent 2 May 2022 Dr Furst Fit & Not Incompetent 28 July 2022 Prof Coyle Fit & Incompetent 10 August 2022 Dr Nambiar Response to Prof Coyle’s report dated 28 July 2022 15 August 2022 Dr Ferris Response to Prof Coyle’s report dated 28 July 2022 22 August 2022 Prof Morris Fit & Incompetent 22 August 2022 Dr Furst Response to Prof Coyle’s report dated 28 July 2022 28 August 2022 Prof Morris Incompetent 29 August 2022 Dr Ferris Response to Prof Morris’ report dated 22 August 2022
The trial pursuant to s 269G of the CLCA
Ms Rigney elected to be tried by judge alone and the matter proceeded by way of examination under Part 8A of the CLCA (“Part 8A”) into Ms Rigney’s mental competence to commit the offence of murder.
On 8 September 2022, Ms Rigney was arraigned and pleaded not guilty to the charge of murder. I then made an order under s 269E(2) that the matter proceed first with the trial of the objective elements of murder pursuant to s 269G A.
On 12 September 2022, pursuant to s 269G A(1), I heard evidence and representations put by the prosecution and the defence relevant to whether the objective elements of murder were established against Ms Rigney. I found the objective elements of murder were established beyond reasonable doubt and recorded a finding to that effect pursuant to s 269G A(2). The trial then proceeded as a trial of Ms Rigney’s mental competence to commit murder pursuant to s 269G B.
The test for mental competence
The s 269C defence is as follows:
269C—Mental competence
(1)A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; that is, the person could not reason about whether the conduct, as perceived by reasonable people, is wrong; or
Note—
Paragraph (b) adopts the test as stated and excludes from consideration whether the defendant could reason with a moderate degree of sense and composure as set out in R v Porter (1936) 55 CLR 182.
(c) is totally unable to control the conduct.
(2)If, on an investigation under this Division, a person is found to be mentally incompetent to commit an offence and the trial judge is satisfied, on the balance of probabilities, that the mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self-induced intoxication (whether the intoxication occurred at the time of the relevant conduct or at any other time before the relevant conduct), the person may not be dealt with under this Part but may (if appropriate) be dealt with under Part 8.
(3)However, despite the fact that the judge is satisfied that the person's mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self-induced intoxication, the judge may nevertheless make an order that the person be dealt with under this Part after taking into account—
(a) the time and circumstances of when and how the intoxication caused the mental impairment; and
(b) the interests of justice; and
(c) whether the making of such an order would affect public confidence in the administration of justice.
A “mental impairment” is defined in s 269A(1) of the CLCA and includes a “mental illness”, an “intellectual disability”, and a “disability or impairment of the mind resulting from senility”. A “mental illness” is defined as a “pathological infirmity of the mind (including a temporary one of short duration)” with a footnote explaining that:
A condition that results from the reaction of a healthy mind to extraordinary external stimuli is not a mental illness, although such a condition may be evidence of mental illness if it involves some abnormality and is prone to recur (see R v Falconer (1990) 171 CLR 30).
The definition of “mental impairment” under s 269A(1) of the CLCA does not include “intoxication”, which is defined as “a temporary disorder, abnormality or impairment of the mind that results from the consumption or administration of a drug”.
Intoxication excluded
Samples were obtained from Ms Rigney during forensic procedures conducted following her arrest. Analysis indicated that her blood sample contained:
·approximately 0.01 g methylamphetamine;
·approximately 0.078 mg/L aripiprazole;
·0.007 g/L THC; and
·0.058 mg 11-nor-9-carboxy-Δ9-THC.
The urine sample contained:
·methylamphetamine;
·amphetamine;
·aripiprazole;
·paliperidone;
·nordiazepam;
·temazepam; and
·11-nor-9-carboxy-THC.
Prof White interpreted the results of the analysis of Ms Rigney’s blood and urine and noted the following:
1.The antipsychotic medication aripiprazole was detected in the blood and urine samples, while the antipsychotic paliperidone was detected only in the urine sample.
2.The concentration of aripiprazole in the blood sample was relatively low, but consistent with normal therapeutic use. It was consistent with a dose in the range of 10 to 15 mg/day, assuming Ms Rigney’s last use of aripiprazole occurred many hours prior to the blood sample collection. It is also consistent with administration of the drug by monthly injections, although slightly below the low end of the expected range.
3.The paliperidone in the urine sample could be attributable to either consumption of paliperidone itself or to the metabolism of risperidone. Both paliperidone and risperidone are prescription antipsychotic drugs.
4.Risperidone was not detected in the blood sample.
Prof White concluded:
1.Ms Rigney most likely consumed cannabis after the stabbing. He could therefore not comment on any effects of cannabis on her at the time of the stabbing.
2.Ms Rigney most likely consumed methylamphetamine at least one day prior to the stabbing.
3.It is possible that at the time of the stabbing, Ms Rigney was experiencing persistent or rebound effects of methylamphetamine including fatigue, insomnia, and psychosis after the main effects had diminished. If she were experiencing any effects, they were likely not pronounced.
4.Aripiprazole would be expected to reduce the likelihood of psychotic symptoms resulting from the combination of cannabis and methylamphetamine. Ms Rigney experiencing psychotic symptoms due to the combination of cannabis and methylamphetamine at the time of the stabbing therefore seems unlikely.
5.Ms Rigney would have been experiencing therapeutic effects of aripiprazole, but no significant effect of the antipsychotics paliperidone or risperidone at the time of the stabbing.
Prof White also observed that Ms Rigney did not appear drug-affected in the CCTV footage as detailed above prior to the stabbing.
As I have already stated, Prof White noted, by reference to the video recording of the first police interview, that from her arrest on 7 December 2018 until 12:52 am the next day, Ms Rigney appeared very drowsy but was capable of responding and showed normal cognitive function. He suggested the drowsiness could have been caused by a drug or drugs, but that there was otherwise no evidence that she was under the influence of any drug.
Both the prosecution and defence submit the weight of evidence indicates that Ms Rigney was not materially affected by drugs at the time of the stabbing.
Ms Rigney’s mental impairment
There is no dispute that at the time of the stabbing, Ms Rigney had a mental impairment as defined by s269A; namely, treatment‑resistant schizophrenia. The question is whether Ms Rigney’s mental impairment caused her to be mentally incompetent to commit the murder of Maria Luis pursuant to s 269C.
As mental competence is presumed pursuant to s 269D, the burden falls on the defence to establish on the balance of probabilities that at the time of the stabbing, Ms Rigney had a mental impairment that affected her in at least one of the ways set out in s 269C(1).
Section 269G B(3) prescribes what I must do at the conclusion of this trial:
(3)At the conclusion of the trial of the defendant's mental competence, the court must decide whether it has been established, on the balance of probabilities, that the defendant was at the time of the alleged offence mentally incompetent to commit the offence and—
(a) if so—must declare that the defendant was mentally incompetent to commit the offence, find the defendant not guilty of the offence, and (subject to Division 3A) declare the defendant to be liable to supervision under Division 4 Subdivision 2;
(b) if not—must record a finding that the presumption of mental competence has not been displaced and proceed with the trial in the normal way.
The prosecution says that the presumption of mental competence prescribed by s 269D has not been displaced and that Ms Rigney engaged in the conduct that killed Maria Luis in a heightened emotional state without being psychotically driven. The defence does not rely on s 269C(1)(a) but says that because of her mental impairment, Ms Rigney did not know that her conduct was wrong pursuant to s 269C(1)(b) and/or was totally unable to control her conduct pursuant to s 269C(1)(c).
The 11-day trial was heard over many months to accommodate the availability of the experts, counsel, and the Court. The trial also accommodated Ms Rigney’s need, identified by her treating psychiatrists, for a 15-minute adjournment every 45 minutes.
Ms Rigney called Prof Coyle and Prof Morris to give evidence, while the prosecution called Brevet Sergeant McKenzie (a crime scene investigator), Dr Nambiar, Dr Ferris, and Dr Furst.
Whilst Prof Coyle and Prof Morris gave evidence prior to the experts called by the prosecution, I will begin by discussing the opinions of Dr Nambiar, Dr Ferris, and Dr Furst as they assessed Ms Rigney before Prof Coyle and Prof Morris.
Dr Nambiar
Dr Nambiar obtained his specialist qualifications in 1997 and has been the clinical director of JNH since 2015. Dr Nambiar gave evidence he also has a part‑time private practice and has 30 years’ experience in providing expert opinions on the question of competency to commit offences and fitness to stand trial.
Dr Nambiar’s report dated 26 March 2020
Ms Rigney’s solicitors obtained a report from Dr Nambiar dated 26 March 2020.
Dr Nambiar reported that Ms Rigney’s standard response to questioning during his first assessment of her was “I can’t remember”, but with prompting, he was able to obtain the following account of events leading up to the stabbing:
1.She had been using amphetamines at least weekly prior to 7 December 2018;
2.She had also been using cannabis regularly, having obtained it from different people including Maria Luis. She smoked bongs on 7 December 2018;
3.She recalled using methamphetamine approximately one week before 7 December 2018;
4.She had very little recollection of how she was feeling around the time of 7 December 2018. In his first report, Dr Nambiar referred to the treating team notes, which record that she had been irritable and abusive towards them when they who visited her at her home;
5.When asked whether she heard voices, she said she could not remember but also told Dr Nambiar she had heard voices in the past that tell her what to do, although never to stab or otherwise hurt anybody;
6.She did not recall attending Service SA. While she recalled going to Cash Converters and obtaining money, she had poor recollection of what she spent the money on;
7.She had no recollection of the rest of 7 December 2018 apart from smoking cannabis and listening to music in her house; and
8.She said she had no contact with Maria Luis other than occasionally buying cannabis from her. She recalled walking to her home and buying it on at least two occasions in the past. She also said she had a group of friends who would buy cannabis for her, including from Maria Luis. She was adamant she did not buy methamphetamine from Maria Luis and that she had never had any verbal or physical altercations with her.
Dr Nambiar’s opinion following two hour-long interviews with Ms Rigney and review of the documentation provided to him – which did not include the video of the second police interview – was that her fitness to stand trial remained in question. He reported, “based on how she presented when she was incarcerated shortly after her arrest, it is pretty evident [Ms Rigney] was experiencing acute disorganised thought, was irritable and that her thought processes were impaired. In my opinion this was due to her schizophrenia in combination with the possible effects of previous substance abuse”.
Dr Nambiar stated Ms Rigney had a diagnosis of schizophrenia and that in the days and weeks leading up to the stabbing, her mental state was unstable despite changes in her medication, and that her use of cannabis and amphetamines further exacerbated her condition. He said she was exhibiting ongoing acute and chronic symptoms of schizophrenia, including irritability, aggression, and delusions, in the weeks and months prior to the stabbing.
Having applied the test for mental competence, Dr Nambiar concluded Ms Rigney knew the nature and quality of her conduct. He stated her inability to recall all of the details appeared to be evasive, “perhaps in order to naturally deny allegations”, and the issue of whether she knew her conduct was wrong as perceived by reasonable people remained difficult to determine.
Dr Nambiar noted that the facts of charge recorded that Ms Rigney told police she had entered the Luis house to buy cannabis and that there were other people responsible for the stabbing.
He summarised his opinion as follows:
It is clearly up to the Court to decide the objective elements of the offence however, it is my opinion that your client’s inability to remember what had occurred are in part keeping with defensive behaviour whilst on the other hand, her motive to commit the offence remains uncertain and on the balance of probabilities, may in fact have been in the context of delusional thinking. The number of stab wounds would indicate significant anger or some other emotion that may have its origins in delusional thought, or unstable mood.
It is also unclear as to whether your client’s ability to control her conduct was maintained as a result of her mental state at the time.
In my opinion, on the balance of probabilities, it is my view that more likely than not your client’s mental processes were that impaired that she was unable to know that her conduct was wrong and was more than likely responding to disordered thought processes and therefore has a mental impairment defence available to her.
Dr Nambiar’s report dated 20 July 2020
Dr Nambiar provided an addendum report dated 20 July 2020 in response to the Court’s order pursuant to ss 269WA(1)(a) and (b).[2] In the second report, Dr Nambiar considered a letter from the Director of Public Prosecutions dated 26 June 2020 seeking his further comment on certain matters and propositions (“the DPP letter”), along with the video of the second police interview.
[2] Sections 269WA(1) and (2) of the CLCA prescribe the Court’s power to order examination of the defendant by a psychiatrist and require that the results of the examination be reported to the Court.
Dr Nambiar also re‑interviewed Ms Rigney for approximately one hour. Dr Nambiar reported that Ms Rigney’s schizophrenia symptoms had continued to resolve over time with treatment, and her mental processes at the time of his second report were not so disordered or impaired that she was unfit to stand trial. He further considered that Ms Rigney’s appearance, conduct, and in particular, conversation during the second police interview[3] was not consistent with psychosis. Specifically, he reported she did not appear to be thought disordered or expressing delusional ideas in relation to the stabbing or Maria Luis. He noted that she provided an exculpatory account.
[3] Dr Nambiar referred to this interview as having taken place between 2:00 and 3:00 am on 8 December 2018. However, the second police interview commenced at 2:45 pm.
Dr Nambiar considered Ms Rigney’s lack of symptoms during the second police interview could be consistent with her experiencing lucid thoughts and the effects of intoxication having worn off. His opinion was that the degree of composure demonstrated by Ms Rigney during the second police interview made it less likely that she was acutely psychotic at the time of the stabbing. This presentation, according to Dr Nambiar, in the absence of any obvious delusional thinking or hallucinatory phenomena, gave more weight to a conclusion that she knew her conduct was wrong.
Dr Nambiar’s report dated 8 February 2021
In his report dated 8 February 2021 concerning fitness to stand trial, Dr Nambiar stated:
I put it to her that when she was interviewed by SAPOL, the recording of which I had viewed on DVD, that she had provided a number of explanations of what had occurred at the victim’s house when she was present, that may have given rise to the victim’s death. She denied having any memory of this and made reference to attending the house to buy marijuana but had no other recollection of anything else that occurred that day.
When I went through the account of the days leading up to and the day of the offence that she had provided to me when I had interviewed her in 2020, she now claims no recollection. I noted that her level of co-operation and motivation to address any questions to her with regards to the offence that she has been charged with, was extremely limited and it gave me the impression that she was avoiding answering questions.
...
Ms Rigney appears to have a relatively intact memory with regards to incidents that have occurred in her past that she chooses to raise or focus on. There does not appear to be a generalised inability to recall details of past events. Her current inability to recall the events of the day of the offence is in contrast to her ability to recall some details when I interviewed her in 2020. This inability is not due to an impairment.
I would also add that although she claimed on her most recent interviews with me during her current admission to James Nash House that she has no recollection, I note that in my first interview with her at the Adelaide Womens Prison in March 2020, her memory of events and version of events were much more detailed and she was able to describe those details with much conviction as compared to the effort she appears to be making now.
In my opinion, her mental state has improved considerably since March of 2020 and since I subsequently [interviewed her] in July 2020. Her mental state now is much more stable and sustained.
In my opinion, her willingness to co-operate is the more overriding factor at the present time.
(Emphasis added)
Dr Nambiar concluded on that basis Ms Rigney was fit to stand trial.
Dr Nambiar’s report dated 28 April 2021
In his report dated 28 April 2021 providing an update regarding Ms Rigney’s fitness to stand trial pursuant to s 269K, Dr Nambiar reported:
As referred to in my previous report, she can be drawn into conversations that she chooses to and during those periods, her thought processes do not appear to be impaired by psychotic experiences. There appears to have been a significant improvement with medication (I note there have been changes to her anti-psychotic regime) and yet her illness continues to demonstrate features of a treatment resistant form of Schizophrenia. The term ‘Treatment Resistant’ means that despite medications taken regularly and supervised, she continues to have chronic residual symptoms that consist of delusions and hallucinations.
I continue to maintain however, that her ability to concentrate is quite variable but appears to be, in my view, more related to her motivation to co-operate, rather than an impairment of concentration brought about by her illness.
What did concern me during this interview however, appears to be her level of sedation which would impair her ability to remain reactive and attend and concentrate during the course of the proceedings.
Given the fact that Ms Rigney’s mental state appears to fluctuate both during the course of an interview and in fact when there is a change in environment, and that she appears to be better functioning when in hospital, I have recommended that she remain in James Nash House now, up until and during the period of her trial. This would give her the best opportunity to participate in a meaningful way without the added burden of a fairly hostile and unpredictable environment in prison.
I also feel that her medications need to be adjusted again in order to bring about a more favourable response to medication which will allow me to arrive at a definite opinion regarding to what extend her illness will impact on her ability to participate in court.
Although I feel that her motivation to co-operate is of her own volition, I would like to be certain that this is the case and to exclude the impact that her illness has on her ability to participate in her trial in a meaningful way.
(Emphasis added)
Accordingly, Dr Nambiar suggested the trial listed to commence on 6 May 2021 be postponed while Ms Rigney remained in JNH “in order to make the necessary adjustments to her medication and for regular evaluations to occur by [himself] and Dr Ferris to arrive at a firm opinion regarding her fitness to stand trial”.
Dr Nambiar’s report dated 26 July 2021
In his report dated 26 July 2021, Dr Nambiar said that following assessment of Ms Rigney, he considered she was fit to stand trial. Dr Nambiar remained of the view Ms Rigney should remain in JNH for the duration of her trial to provide her with hospital support and maintain her compliance with treatment, thereby giving her the best chance of participating in the proceedings.
Dr Nambiar’s evidence
Dr Nambiar was asked in evidence to detail the factors he considered in reaching his altered opinion as detailed in his second report. He said it was about linking Ms Rigney’s illness to her behaviour at the time of the stabbing. He noted she has an established diagnosis of schizophrenia, along with a history of personality disorder, quite disruptive behaviour, and quite violent behaviour including using weapons. He said her behaviour at times can be erratic, impulsive and quite bizarre in response to her thinking. However, Dr Nambiar said that having read the evidence and interviewed her, he found it difficult to make a connection between her active schizophrenia symptoms of delusions and hallucinations and the stabbing.
Dr Nambiar said the hallucinations Ms Rigney experienced were a combination of auditory and visual, as well as hallucinations of touch and feel. For example, she reported feeling that her sexual organs were hanging out of her body. Dr Nambiar also said Ms Rigney had several delusions, including that she was being injected with a needle, that she was raped, that she needed a new vagina and rectum, and that she had the power to control weather with her mood, such as lightning. She also had the belief that she was a part of the Illuminati, that she is God, and that she could predict and change world events like natural disasters.
Dr Nambiar explained that a command hallucination is an auditory hallucination of a voice telling a person to do something. He said it is usually a repetitive voice that the person finds very difficult to ignore and resist. Dr Nambiar said that, on interviewing Ms Rigney, she reported hearing voices, but that they never commanded her to harm anyone. Dr Nambiar said it does not necessarily follow that a person experiencing a command hallucination would not appreciate whether the voice was telling them to do the wrong thing.
Dr Nambiar explained a personality disorder develops in a person’s formative years. He said Ms Rigney has a personality disorder that is characterised by both borderline and antisocial traits. He described the borderline traits as pervasive instability. He explained that when a child is developing, they are responsive to their emotions and impulsive, but that as they experience life and interact with others, they learn to curb those behaviours. However, this refinement does not occur when a person has a borderline personality disorder (“BPD”), which results in constant instability that can affect the intensity and stability of the person’s relationships.
Dr Nambiar noted that Ms Rigney’s developmental years were affected by traumatic experiences and instability in her environment. He said, additionally, she has some antisocial traits which include deceitfulness, impulsivity, difficulty controlling her anger, and a disregard for rules. Dr Nambiar explained that a personality disorder is not a mental illness, and it does not constitute a mental impairment. However, in terms of examining Ms Rigney’s actions and how she conducts herself, her personality disorder needs to be factored in as well as the superimposed schizophrenia.
Dr Nambiar said the fact that Ms Rigney was one day overdue for her aripiprazole depot injection at the time of the stabbing would not have had any significant effect. He explained that the way the antipsychotic injection is administered results in a peak of level and by the time the peak starts to drop, another dose is given. He explained that the aim is to give the drug regularly such that eventually, the peak remains constant. He said if administration of a dose were a day late, the level may have dropped slightly but not significantly. Dr Nambiar said that, at the time of the stabbing, Ms Rigney’s aripiprazole level should have reached a steady state and would not yet have dropped to a subtherapeutic level. Dr Nambiar said he would expect the therapeutic effect of the drug to be lost if a dose had not been administered for a period of a few weeks.
In preparing his second report, Dr Nambiar said he considered the video of the second police interview, the DPP letter, and his further interview with Ms Rigney.
He said the video of the second police interview, which he did not have at the time of his first report, caused him to change his opinion as to Ms Rigney’s competence. He explained that the first stage in determining whether someone has a s 269C defence is to consider whether there is a mental impairment, which Dr Nambiar noted was not in dispute in this matter. He said one then needs to consider ss 269C(1)(a), (b), and (c), and that in order to do so, it is necessary to ascertain the person’s mental state at the time of the alleged criminal conduct or as close to that time as possible.
Dr Nambiar explained he was looking at whether there was a delusional motive or whether Ms Rigney committed the stabbing because of either a command hallucination or some other symptom of her illness. He said that while it was difficult to pin that down during his first interview, there was overwhelming evidence that Ms Rigney had schizophrenia. In those circumstances, and given the fact that he had not seen the video of the second police interview, he gave her the benefit of the doubt and reported that she was unable to reason about the wrongfulness of her conduct.
Dr Nambiar described Ms Rigney’s presentation in the first police interview as quite sedated and vague, noting that she did not seem to be answering any questions. In the second police interview, he described her as quite reactive, verbose, and less cooperative. When he viewed the second police interview, Dr Nambiar said it became a lot clearer that Ms Rigney was able to provide more information about what had occurred, including detailing a whole range of different scenarios and completely removing herself from the stabbing. This suggested to him that there was a degree of either evasiveness on Ms Rigney’s part, or that she was trying to mislead. Together with the information he already had, this altered his opinion that Ms Rigney’s mental impairment was linked to the stabbing, considering that there may have been another motive. Therefore, he could not say, on balance, that the stabbing was related to Ms Rigney’s mental impairment.
Dr Nambiar was asked to explain the reference in his second report to there being no evidence of formal thought disorder in the second police interview. Dr Nambiar explained that thought disorder affects how a person organises their thoughts and can be in terms of form or content. He explained disorders in terms of form affect how a person organises their thoughts, which might result in them jumping between topics in conversation without any connection. These are called loose associations. Disorders in terms of content manifest in delusions, or fixed form beliefs. Dr Nambiar said there are degrees of formal thought disorder.
Dr Nambiar was shown the video of the second police interview during his evidence and asked to consider whether anything in the video reflected a symptom of schizophrenia. Dr Nambiar said Ms Rigney presented as quite lucid and that she was not exhibiting any symptoms that were overtly related to schizophrenia. When asked about Ms Rigney’s denial of being arrested for murder, he said that this is not necessarily a symptom of schizophrenia.
Dr Nambiar explained that specific questions would have to have been asked of Ms Rigney to try and draw out symptoms if they were present but that if she were floridly psychotic, the symptoms would be obvious, such as behaving strangely or not making sense. He said there was not any significance in Ms Rigney smiling during the second police interview and that he did not notice any persistent thought disorder or hallucinations that could have motivated Ms Rigney to commit the stabbing. Dr Nambiar explained that in his experience of assessing accused persons under s 269C, there is usually evidence of a delusional thought linked to the alleged conduct or there are persistent command hallucinations that the person finds overwhelming and unable to resist.
Dr Nambiar also considered that there was a difference in how Ms Rigney engaged with him when he interviewed her for his second report, saying that she was obviously more stable after having received further treatment in the absence of any illicit drugs. He said she was unwilling to discuss any aspects the alleged offence, in contrast to her attitude during his first interview with her.
Dr Nambiar formed the opinion that Ms Rigney was not frank with him during his second interview.
Dr Nambiar explained it is important to note that when a person is asked certain questions, if the person freely admits to some things while refusing to talk about others, the clinician queries the motive behind that behaviour.
Cross-examination of Dr Nambiar
Dr Nambiar was cross-examined about Ms Rigney being overdue for the depot aripiprazole at the time of the stabbing. Dr Nambiar explained that while the injection was one day overdue, administration of antipsychotics is not a perfect science and they are often given two or three days either side of the due date. It was put to Dr Nambiar that the antipsychotic medication Ms Rigney had been taking was not effective. He said it was only partially effective. It was put to him that whilst the antipsychotic medication was at a therapeutic level at the time of the stabbing, it was a therapeutic level of a drug that was not effective. Dr Nambiar again said it was partially effective, agreed that it was not entirely effective at preventing psychoses and explained there is no medication that prevents psychoses entirely.
Dr Nambiar agreed in cross-examination that when he prepared his first report, Ms Rigney was not able to describe her thought processes or any symptoms she may have been experiencing at the time of the stabbing. When asked how he had formed a conclusion on Ms Rigney’s competence in the absence of such information, Dr Nambiar said his conclusion was based on the information he had been provided at the time, which demonstrated she had an established illness, that she had symptoms of schizophrenia that appeared to be chronic and resistant to treatment, and that, at the time of her first police interview, she seemed to be sedated. Dr Nambiar said it was difficult to establish what symptoms she was experiencing at the time of the stabbing, but that the first police interview was the source of information most proximate to the stabbing that was available to him. He summarised his opinion as being that “she had symptoms of schizophrenia and more likely than not, because there was no other evidence to challenge that in [his] mind, that it was related to the offence”.
Dr Nambiar agreed the nature of the attack was also a relevant consideration. It was put to him that the nature of the attack, namely the 34 stab wounds, was grossly disproportionate to having been rebuffed in relation to an attempt to purchase cannabis. It was put to Dr Nambiar that these circumstances were more consistent with the stabbing being the product of a psychotic motive than a non‑psychotic motive. Dr Nambiar said that was not necessarily so, but at the time of his first report with the lack of information he had, he gave Ms Rigney the benefit of the doubt.
Dr Nambiar agreed that collateral information indicated that Ms Rigney had gone to Maria Luis’ house to obtain cannabis and either could not, or believed she could not do so. Dr Nambiar agreed that from the information he had at the time of his first report, there was evidence of conflict or tension between Maria Luis and Ms Rigney in relation to access to drugs. It was pointed out to Dr Nambiar that the possibility of the stabbing being linked to a drug-related conflict did not dissuade him from reaching his opinion, at the time he prepared his first report, that the most likely explanation for the stabbing was a psychotic episode. He replied with, “not with the information I had at the time, no”.
Dr Nambiar agreed that he was aware of Ms Rigney’s attendances at Service SA and Cash Converters. He accepted that the inference he drew is that she went and obtained money for the purposes of buying drugs, and that this conduct is not inconsistent with her being psychotic at the time. He was asked whether the conduct was inconsistent with her being floridly psychotic. Dr Nambiar said if Ms Rigney were floridly psychotic, it would be less likely that she would be able to attend to those tasks, but that it would depend on the degree of psychosis. He agreed that it is well established that a person in a psychotic state can engage in apparently purposeful conduct. He agreed that the conclusion in his first report that Ms Rigney was mentally incompetent was not undermined by her attendances at Service SA and Cash Converters.
Dr Nambiar also said he was aware at the time of his first report from the information provided to him, including CCTV footage, that Ms Rigney attended Maria Luis’ home on two occasions on 7 December 2018. He agreed Ms Rigney’s conduct captured on the CCTV during the first attendance was not inconsistent with her being psychotic at the time. He said he was not quite sure how to interpret Ms Rigney’s conduct in knocking over the shopping trolley. He suggested that it may be either unexplained or because she was angry. Overall, he agreed that nothing in the CCTV caused him to doubt the correctness of the view he expressed in his first report that she was mentally incompetent.
With respect to Ms Rigney’s second visit to the Luis house, Dr Nambiar agreed that the conduct depicted on the CCTV footage was not inconsistent with Ms Rigney being psychotic at the time. He agreed that based on the information he had to hand at the time of preparing his first report, he concluded that she was so psychotic when she arrived at Maria Luis’ house that she could not reason that her behaviour in stabbing Maria Luis was wrong. He agreed that for Ms Rigney to have been unable to reason about whether her conduct was wrong, she would have to have been floridly psychotic. Dr Nambiar agreed Ms Rigney’s behaviour as depicted in the CCTV footage of the second visit was, in his view at the time of his first report, not inconsistent with her being floridly psychotic. Further, he said he made an assumption, at the time of writing his first report, that she would have still been floridly psychotic at the time she was depicted walking along Goodman Avenue in the direction of her home without collecting her backpack. He repeated that he made this assumption on the information he had at the time.
In applying the s 269C test in her first three reports, Dr Ferris variously stated she did not have any self-report from Ms Rigney about her mental state, thought processes, motive, or the presence or absence of psychotic symptoms at the time of the stabbing, and that it was possible Ms Rigney was feigning memory loss. Notwithstanding this, as Dr Furst suggested, Dr Ferris’ first three reports, like Dr Nambiar’s first report, appear to presume from the evidence regarding thought disorder that Ms Rigney was unable to reason about wrongfulness. However, as Dr Furst also pointed out, whilst Ms Rigney presented as quite disorganised immediately after the stabbing, it does not necessarily follow that the s 269C defence is available.
Dr Ferris ultimately explained in evidence that there must be a link between a defendant’s psychotic thought processes and the alleged criminal conduct for the s 269C criteria to be satisfied. I accept this aspect of her evidence, and I am assisted in doing so by the clearly articulated, reasoned opinions of Dr Nambiar and Dr Furst on this subject. The need to identify a link between Ms Rigney’s mental impairment and the stabbing, such as evidence of a delusional motive, evidence of command hallucinations, evidence from a source proximate to or at the time of the stabbing, or some other explanation deriving from psychosis for Ms Rigney’s conduct, which would have rendered her completely unable to reason about the wrongfulness of the stabbing or control her conduct, is a consistent theme in the evidence of Dr Nambiar, Dr Ferris and Dr Furst. I accept Dr Ferris’ evidence that she was unable to identify the content of any psychotic thought linked to the stabbing. However, in contrast to Dr Nambiar and Dr Furst, Dr Ferris did not discuss the question of a credible, non-psychotic alternative explanation for the stabbing. Her evidence was confined to not having a self-report from Ms Rigney or other evidence regarding any psychotic symptoms she was experiencing at the time of the stabbing, and her belief that Ms Rigney was able but unwilling to provide more details.
In circumstances where Dr Ferris did not logically and clearly explain the reasons for her change of opinion, deferred to the concept of truth, and did not address whether there was evidence of a credible, non-psychotic alternative explanation for the stabbing, and in circumstances where her earlier reports did not identify a link between Ms Rigney’s mental impairment and the stabbing, I am unable to accept any of her opinions regarding Ms Rigney’s competence. It is therefore unnecessary that I deal with the defence submissions regarding the admissibility of Dr Ferris’ opinion that Ms Rigney was being untruthful in accordance with Bonython.
With the benefit of hindsight, given the way Dr Nambiar and Dr Ferris altered their opinions when further information was provided or Ms Rigney’s presentation improved, it would have been preferable for them to have articulated their misgivings regarding competency by giving their opinion but reserving the right to reconsider it if more information became available. An example of such an approach can be found in the opinion of the forensic psychiatrist, Dr Owen Haeney, who reported in Childs that he formed his opinion in respect of mental competence on the balance of probabilities, but acknowledged that there was significant conflicting or inconsistent information from the sources available:[20]
I am persuaded most by his pre-existing diagnosis of schizophrenia, some contemporaneous evidence of active mental illness, the rather bizarre nature of the attack and the current lack of an alternative plausible motive. However, this opinion is offered not without some reservations and I reserve the right to reconsider should new information come to light.
(Emphasis added)
[20] [2023] SASC 103 at [65].
It also would have been prudent for Dr Nambiar to have avoided explaining his original opinion in terms of giving Ms Rigney the “benefit of the doubt”. In other words, it would have been preferable for him to have adhered to the statutory language of Part 8A when applying the s 269C test and articulating his opinion.
Dr Furst noted there is a credible, non-psychotic alternative explanation for the stabbing. He referred to Ms Rigney’s history of buying cannabis from Maria Luis and the evidence of conflict between them in the days leading up to the stabbing.
Dr Furst considered it possible that Ms Rigney attempted to purchase or purchased cannabis from Maria Luis, and that a disagreement occurred during that interaction. He said that if such a disagreement had occurred, it is likely that Ms Rigney’s psychotic state would have predisposed her to react in a “paranoid, impulsive and aggressive manner”. Dr Furst stated that in such circumstances, Ms Rigney would have acted on impulse and in a heightened emotional state but nonetheless would have known that her conduct was wrong.
Dr Furst noted that there was a gap in Ms Rigney’s report of events between attending Maria Luis’ house to obtain cannabis, going home to smoke it, returning to drop her backpack at the front of the property nearby to the Luis premises, then the police coming to her house. He referred to Ms Rigney giving an account during the second police interview of being present at Maria Luis’ home and witnessing her being stabbed but said that “there was no explanation or anything deriving from her psychosis as to why she would be unable to know that stabbing a person was wrong”.
Dr Furst also noted instances of Ms Rigney engaging in violent behaviour while affected by an active psychosis, which he said would be consistent with a predisposition to act aggressively. He described this as a link between her mental illness and the stabbing but reiterated that he “couldn’t find where it went beyond diminished control of behaviour to actually being unable to know wrongfulness or complete inability to control”.
Dr Furst also reiterated that it is very rare for a person to satisfy s 269C(1)(c):
I think it’s because of the way that test is framed, that they’re sort of wholly unable, you know, totally unable to control and I think the issue there is that of course in a moment, any person who has a high emotional state might, what people might colloquially call lose control. The reality is even in those states, people do have some measure of control. The issue is they choose to, it’s not really a conscious choice, but it’s an allowance of their [emotions] to take over and do those actions. So I think that there is always some measure of control there, otherwise any person might have a momentary loss of control and be considered mentally impaired.
(Emphasis added)
While Dr Furst agreed that Ms Rigney may have considered that Maria Luis had treated her unfairly and given that idea “a prominence that it may not have deserved”, he did not accept that it was more likely than not that Ms Rigney would have reacted psychotically if she had been rebuffed by Maria Luis on the day of the stabbing. He said:
I don’t think you can be that clear that it’s because of the psychosis, it’s because of a paranoid interpretation of the events. Certainly people who are psychotic will have a general predisposition, as I said, more fearful, more paranoid, more impulsive, all of those things and so certainly within that context she might have felt like she was being rejected unfairly, but that’s also part of normal day-to-day interaction. That doesn’t necessarily mean it was the psychosis which caused her to react.
(Emphasis added)
In identifying that the history of conflict between Maria Luis and Ms Rigney may suggest a non-psychotic motive for the stabbing, Dr Furst also noted that violence is commonly associated with drugs, drug deals, and drug debts. Dr Furst agreed the attack on Maria Luis was frenzied but said that a person in a heightened emotional state could react to a situation in a frenzied manner without being psychotically driven.
Dr Furst said that the issue was “fairly finely balanced” but that “there just wasn’t enough [evidence] to … make it more likely than not that [Ms Rigney had the] defence and [he] had to balance that against an alternative hypothesis”.
Dr Furst explained logically and clearly how he considered the relevant facts, including the collateral information regarding Ms Rigney and her mental impairment, in applying the s 269C test. He also candidly stated that the matter is finely balanced. I am satisfied Dr Furst applied the s 269C test correctly and I accept his opinion.
Prof Coyle and Prof Morris concluded that Ms Rigney’s psychopathology precluded her from knowing her conduct was wrong and/or caused her to be totally unable to control her conduct.
Prof Coyle said he formed the view that Ms Rigney was “genuine vis-à-vis the history she [had] recounted and her symptoms”. He explained he was of the opinion Ms Rigney was suffering from dissociative amnesia:
Because it is very likely to occur in connection with trauma cases following child sexual abuse … all things considered, [it is] the most effective scientifically validated explanation for her inability to be able to recall significant if not all aspects of the night in question.
Prof Coyle maintained he had considered alternative explanations for Ms Rigney’s purported inability to recall the stabbing, including wilful denial or avoidance, but contended:
If one accepts, as everyone has done, that she is suffering from chronic paranoid schizophrenia, then there can be no question of wilful denial or ignorance because of the word ‘wilful’. She did not have the capacity, the mental capacity, to engage in wilful behaviour because that word implies knowing what she was doing. It is completely inconsistent with a diagnosis of paranoid schizophrenia, which she had had for years before this event.
(Emphasis added)
Prof Coyle argued:
Again, in simple terms, we’re talking – and very pragmatic terms, we’re talking about a person who, by definition, suffering from paranoid chronic schizophrenia is not in contact with reality. It is that simple. There can be nothing simpler. We are all agreed that she suffered from chronic paranoid schizophrenia at the time. That’s not an argument. It must proceed from that, but in conjunction with the problems, the interactive, the synergistic problems caused by chronic post-traumatic stress disorder that she was not capable of being in contact with reality at that time. It must … proceed from that. There is no other logical, scientific or clinical explanation.
(Emphasis added)
Prof Coyle concluded that “it is more likely than not that Ms Rigney was suffering mental impairment due to the conjoint operation of her complex psychopathology”. Prof Coyle determined this precluded her from knowing whether her conduct was wrong and/or rendered her totally unable to control her conduct. Prof Coyle arriving at his conclusion in this way suggests that he merely reasoned from the fact of Ms Rigney’s mental impairment that the s 269C defence is available to her.
In response to the suggestion that evidence of psychotic phenomenology at the time of the stabbing must be identified before it can be concluded that the s 269C defence is available, Prof Coyle queried:
… how would cogent evidence of Ms Rigney acting on some delusional belief system be obtained when she was suffering from Dissociative Amnesia which interacted with her Chronic, Treatment Resistant Paranoid Schizophrenia, PTSD – as well as Bipolar Affective Disorder according to Dr Ferris – and the sequelae of child sexual abuse?
Prof Coyle went on to postulate that Ms Rigney may have suffered from a flashback with derealisation at the time of the stabbing such that she could not distinguish fantasy from reality, which would have, by definition, rendered her mentally incompetent. As Dr Furst pointed out, whilst this possibility cannot be excluded, there is no evidence of it having occurred in this matter and even if there were, it does not necessarily follow that the s 269C defence would be available in such circumstances.
Having considered the report and evidence of Prof Coyle, I have concerns about his understanding of the presumption and burden that apply with respect to the mental incompetence test. I refer to his criticism of Dr Furst’s conclusion in this context. I also have reservations in accepting his opinion in circumstances where he said that he did not have enough information to conclude that either or both of ss 269C(1)(b) and (c) were satisfied, but nonetheless formulated his opinion in terms of (b) and/or (c) being established. Prof Coyle also remarked on several occasions that Ms Rigney was suffering from a mental impairment due to the conjoint operation of her complex psychopathology. However, it is not the case that Ms Rigney’s complex psychopathology caused a mental impairment; it includes a mental impairment, namely, treatment‑resistant schizophrenia as well as possibly PTSD. This again appears to reveal a fundamental misunderstanding of the s 269C test.
Prof Morris, like Prof Coyle, concluded that at the time of the stabbing, Ms Rigney’s difficult‑to‑treat psychotic condition of treatment‑resistant schizophrenia, as well as chronic PTSD (secondary to developmental trauma and child sexual abuse) and borderline personality traits, exacerbated by substance use, would have rendered Ms Rigney psychotic, thought disordered, impulsive, irrational, and unable to control her behaviour. He concluded, “based on the fact that she was so profoundly unwell”, that she did not know her conduct was wrong. Prof Morris similarly relied on the severity of Ms Rigney’s mental impairment to support his conclusion that Ms Rigney was completely unable to control her conduct, as distinct from having some capacity to control it. He said he also took the frenzied nature of the stabbing into account in arriving at his opinion.
Prof Morris considered that the conjoint operation of PTSD and schizophrenia explains Ms Rigney’s memory difficulties around the time of the stabbing.
At this stage, it is convenient to deal with the issue of Ms Rigney’s memory and the suggestion of dissociative amnesia. The evidence of Prof Coyle and Prof Morris on these topics relies to a great extent on the statistical likelihood of Ms Rigney experiencing dissociative amnesia given her mental impairment, including possibly PTSD, in combination with her history of being sexually abused as a child.
I note the assertion that Ms Rigney has dissociative amnesia is speculative; the evidence does not permit me to make a finding regarding Ms Rigney’s memory of the stabbing. The prosecution’s submissions in reliance on Ramsay v Watson, and the issue of whether Ms Rigney had comorbid PTSD at the time of the stabbing, can therefore be set aside.
The evidence also does not permit me to make a finding in respect of any brain damage suffered by Ms Rigney consequent upon child sexual abuse, or the consequences of any such damage. I note that in addition to the uncertainty as to whether child sexual abuse causes brain damage, there is simply no evidence of any brain damage being suffered by Ms Rigney.
Even were I able to make a finding that Ms Rigney experienced dissociative amnesia, it does not necessarily follow from such a finding that Ms Rigney satisfied either s 269C(1)(b) or (c) at the time of the stabbing. On the other hand, I need hardly remark that Ms Rigney feigning her lack of memory is not necessarily inconsistent with her having been mentally incompetent at the time of the stabbing. In the circumstances I have described, the evidence concerning dissociative amnesia does not assist in the resolution of this matter.
Both Prof Coyle and Prof Morris proffer opinions that by reason of the severity of Ms Rigney’s mental impairment, she would have been rendered psychotic, thought disordered, impulsive, irrational, unable to control her behaviour, and therefore incompetent. In this context, for example, I refer to the comments of Prof Coyle that Ms Rigney was unable to reason about wrongfulness because “by definition, psychosis means a loss of contact with reality”. I am unable to accept the opinions of Prof Coyle and Prof Morris.
The difficulty with their opinions is that were I to accept them, the result would arguably be that any defendant who has a severe mental impairment and no memory of the alleged criminal conduct would have the mental incompetence defence available to them without it being necessary to specifically identify how they satisfied s 269C(1)(a), (b), or (c) in consequence of their mental impairment.
While the severity of the defendant’s mental impairment is, of course, a relevant matter in determining whether the s 269C test has been satisfied, this must be weighed against the possibility of the conduct having a non-psychotic motive. In this case, in the absence of cogent evidence of Ms Rigney’s symptoms and thought processes at the time of the stabbing, and in circumstances where there is a credible, non-psychotic alternative explanation for the stabbing, it is not sufficient to rely on the severity of Ms Rigney’s mental impairment in a general sense to make out the s 269C defence.
Although Ms Rigney appears to have been quite disorganised immediately after the stabbing, I accept Dr Furst’s opinion that this evidence is insufficient to satisfy the s 269C test. Both Dr Furst and Dr Nambiar identified a credible, non‑psychotic alternative explanation for Ms Rigney’s conduct. Dr Furst noted that she had a history of buying cannabis from Maria Luis, had conflict with her in the days leading up to the stabbing, and had possibly attempted to buy or had bought cannabis from Maria Luis but had some form of disagreement with her in the course of that interaction. He said that it is likely that if such a disagreement had occurred, in her psychotic state, Ms Rigney would have been predisposed to react in a paranoid, impulsive and aggressive manner. Dr Furst concluded in such an instance that Ms Rigney would have acted on impulse and in a heightened emotional state but would nonetheless have known the wrongfulness of her behaviour. Similarly, Dr Nambiar considered that Ms Rigney’s relationship with Maria Luis, the perceived conflict between them, and the exculpatory explanation given by Ms Rigney for her attendance at the Luis house appeared to be more consistent with an impulsive episode of behaviour.
The defence contention that there is no plausible, non‑psychotic explanation for Ms Rigney’s conduct, as there was no need for Ms Rigney to obtain cannabis from Maria Luis and therefore no need to have attacked her, as discussed above at [391], is not supported by the collateral evidence, including Ms Rigney’s self‑report during the second police interview.
I accept the evidence of Dr Nambiar, Dr Ferris and Dr Furst regarding the application of the s 269C test and the need for a link between a defendant’s psychotic thought processes and the alleged criminal conduct. I also note that in Childs, it is apparent that Dr Haeney, in repeatedly and persistently interviewing the defendant, was looking for evidence that the defendant’s actions were guided or directed by psychotic phenomenology; in other words, he was looking for a link between the mental impairment and the conduct.
Having considered the reports and evidence of the experts, along with the collateral evidence, there is no evidence either from Ms Rigney herself or any other source proximate to or at the time of the stabbing that Ms Rigney’s actions were guided or directed by psychotic phenomenology. There is no evidence before me that the stabbing was the result of florid psychosis or a delusional belief arising from her treatment-resistant schizophrenia. However, there is evidence of a credible, non-psychotic alternative explanation for the stabbing. I accept the opinions of Dr Nambiar and Dr Furst to this effect. For the reasons I have explained, I am unable to accept Dr Ferris’ evidence regarding Ms Rigney’s competence. I prefer the evidence of Dr Nambiar and Dr Furst on the ultimate issue to that of Prof Coyle and Prof Morris, each of whom seem to start from the premise that Ms Rigney has a mental impairment and is therefore incompetent, rather than properly interrogating whether the s 269D presumption has been displaced.
I indicate that I have not relied on the frenzied nature of the stabbing or the number of stab wounds, given that these matters do not point to either a psychotic or non‑psychotic motive for Ms Rigney’s conduct in the absence of evidence as to what precipitated the stabbing. It is also trite to point out that this Court has tried defendants charged with murder involving allegations of frenzied, non-psychotic conduct. Nor have I relied upon Ms Rigney allegedly burning clothing she was wearing at the time of the stabbing, depositing her backpack at the nearby property, and concealing a knife used in the stabbing, or the manner in which she departed Maria Luis’ home after the stabbing. Even were each of these matters proved, I am not satisfied they necessarily demonstrate that Ms Rigney had the presence of mind to distance herself from the stabbing as contended by the prosecution.
Conclusion
It has not been established on the balance of probabilities that at the time of the stabbing, Ms Rigney did not know that her conduct was wrong; that is, that she was completely incapable of reasoning about whether the conduct, as perceived by reasonable people, was wrong. It has also not been established that she was totally unable to control her conduct.
Pursuant to s 269G B(3), I am not satisfied it has been established, on the balance of probabilities, that Ms Rigney was, at the time of the stabbing, mentally incompetent to commit the offence of murder.
Pursuant to s 269G B(3)(b), I record a finding that the presumption of mental competence has not been displaced and order that the trial is to proceed in the normal way.
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