R v Struthers - [2018] NSWSC 1824

Supreme Court

New South Wales

Medium Neutral Citation: R v Struthers [2018] NSWSC 1824
Hearing dates: 26 November 2018 – 28 November 2018
Decision date: 29 November 2018
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
(1) On the count of attempted murder, I return a special verdict that the accused is not guilty on the ground of mental illness.
(2) On the count of murder, I return a special verdict that the accused is not guilty on the ground of mental illness.
(3) Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990, the accused is to be detained in the designated mental health PODS at Mulawa Correctional Centre, Silverwater, or such other place as may be determined from time to time by the Mental Health Review Tribunal as an appropriate place, until released by due process of law.
(4) The Registrar is to notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by me.
(5) The Registrar is to notify the Mental Health Review Tribunal and Justice Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by me, and to provide those bodies with the following documentation:
(a) A copy of these reasons for verdict and orders;
(b) A transcript of these proceedings; and
(c) A copy of the exhibits tendered at trial.

Catchwords: CRIMINAL LAW – trial by judge alone – count averring attempted murder – count averring murder – allegation that accused drowned one son, and attempted to drown other son – special defence of not guilty by reason of mental illness – psychiatrists agreed that defence available – verdicts of not guilty on the ground of mental illness
Legislation Cited: Crimes Act 1900 (NSW), s 23A
Criminal Procedure Act 1986 (NSW), s 132
Mental Health (Forensic Provisions) Act 1990 (NSW), s 38
Cases Cited: Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500
McNaghten's Case (1843) 8 ER 718
R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490
Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205
The King v Porter [1933] HCA 1; (1933) 55 CLR 182
Category: Principal judgment
Parties: Regina (Crown)
Lisa Struthers (a pseudonym) (Accused)
Representation:
Counsel:
M Pincott (Crown)
E Wilson SC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2017/67645
Publication restriction: Pseudonyms adopted for child victims, accused, mother of victims, and grandmother of victims, in order to avoid identification of victims, pursuant to s 15A(5) of the Children (Criminal Proceedings) Act 1987 (NSW).

Judgment

Introduction

In the afternoon on 2 March 2017, Ms Lisa Struthers (a pseudonym for the accused, used in this written judgment to protect the identities of two children), then aged 27 years, was in the waters of the Murray River at Moama, a township in south-western New South Wales some distance to the west of Albury, and across the border from the larger town of Echuca in Victoria. With her were her two sons, the eldest of whom was aged 9 years, and whom I shall call Edward, and the younger of whom was aged 5 years, and whom I shall call Daniel.
The evidence is overwhelming, undisputed, and indeed formally admitted by the accused that she caused the death of Daniel by holding his head underwater and drowning him. The evidence is similarly incontrovertible that she made a concerted effort to visit the same fate upon Edward.
How and why the accused came to believe that those acts were appropriate, indeed necessary, is the subject of these reasons for verdict, delivered at the conclusion of a trial that commenced before me in the Supreme Court sitting at Wagga Wagga on Monday 26 November 2018.

Procedural aspects

To expand upon procedural aspects of the trial for a moment, on that day the accused was arraigned on an indictment that contained two counts. The first was an allegation that on 2 March 2017, she did attempt to drown Edward with intent to murder him. The second count averred that, on the same date, she murdered Daniel. That arraignment occurred in the absence of a jury panel, because, both parties having consented to a trial by judge alone, proceeding in that way became mandatory (pursuant to s 132 of the Criminal Procedure Act 1986 (NSW)).
The accused pleaded not guilty to both counts. It was immediately indicated by learned defence counsel that those pleas were entered on the basis that the accused sought two special verdicts that she is not guilty on the ground of mental illness, pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act). He further explained that, if the defence of mental illness were not established, he would also rely (with regard to the second count) upon the partial defence of substantial impairment, pursuant to s 23A of the Crimes Act 1900 (NSW), which, if established, would reduce any culpability for murder to the lesser form of homicide, manslaughter.
It was further explained by the learned Crown prosecutor that, bearing in mind the expert opinion that had been obtained by the prosecution from a distinguished forensic psychiatrist, the Crown would also submit at the conclusion of the trial that two special verdicts should be returned by me.
Thereafter the trial proceeded, with care being taken to replicate, to the extent reasonably practicable, the procedure that would be adopted if a jury had been sworn to try the matter. In particular, although material was largely placed before me by way of documents, with the assistance of both counsel I did my best to ensure that the accused, those connected to her and her family, and indeed the community generally, could understand the thrust of the evidence and the submissions.

Findings of fact

In order to explain more deeply the basis upon which the special verdicts were sought, it is necessary first to delve briefly many years into the past. I am satisfied of the following on the balance of probabilities, not least because the entirety of the evidence was not disputed between the parties, and much of it was the subject of formally made admissions and formally agreed facts.
Although she was never diagnosed with any specific mental illness as a child, the accused exhibited some unusual behaviours from an early age. Her mother sought help from a hospital as long ago as when the accused was aged seven or eight. At primary school, the accused was anti-social, and found it hard to make friends. She ran away a lot, and was eventually home-schooled for a time. She left school at 15 and attended TAFE, though in truth her employment history since then has been at best very sparse.
Although she has never been a patient in a psychiatric hospital, or seemingly under the ongoing care of a psychiatrist, the accused has spoken of having heard voices in the past. It is also noteworthy that a close relative receives medication for a mental condition.
Unquestionably, the abuse of prohibited drugs has been a very negative feature of the life of the accused for many years. In particular, the evidence is that she has used cannabis for a long time, and had been using the pernicious prohibited drug ice for some years before March 2017. There is also no doubt that that abuse has worsened her unusual emotional and mental states.
The accused and her mother, Mrs Rhiannon Drennan (another pseudonym), have had a difficult relationship over the years. For a time before the events of March 2017, they had lived together at the home of the accused’s mother in Deniliquin. That was not without incident, and in particular in early 2016 Mrs Drennan took out an apprehended violence order against her daughter.
Early in the same year, the accused was sentenced to imprisonment for property offences. Her two sons, as I understand it, stayed in the care of their grandmother. Whilst incarcerated, the accused was prescribed medication for, to my understanding, anxiety. Nevertheless, in phone calls to her mother from prison, she more than once spoke bizarrely; for example, she referred to herself as “a princess”, and said that she “ruled the world”.
The accused was released from custody in early 2017. She returned to live with her mother in Deniliquin with the boys. She stopped taking the medication that had been prescribed for her in custody, and it seems that her general practitioner was content with that position.
After her release to parole, the accused had contact with a parole officer in Deniliquin, and other community service providers. For a time, there were grounds for guarded optimism, and the accused seemed to be settled with her mother and her sons. Having said that, her mother reported that at times she seemed to be talking to people who simply were not there, was not taking the prescribed medication to which I have referred, and seemed to be hyperactive. Whether that was the result of her mental state, or the abuse of stimulants, or both, is perhaps open to question, though her GP remarked that the accused was not exhibiting the notable thinness that she had suffered when abusing those substances in the past.
In late February 2017, the accused came into contact with Mr Robert Cooper, an acquaintance with whom she enjoyed a relationship the nature of which is not entirely clear to me. He himself was a person with undoubted difficulties, including a dependence upon cannabis.
On Wednesday, 1 March 2017, the accused left the home of her mother, and dropped off both of her sons at school at about 8.45 am. Thereafter, she had a meeting with her parole officer at which her behaviour markedly deteriorated. She spoke of needing her own accommodation with her sons, away from her mother. She also spoke of a “gut instinct” that told her that she was not safe. The parole officer noted that she was agitated, staring, and pacing around the room.
Later that morning, the accused consulted a mental health worker, again in Deniliquin. She was very distressed, sobbing and crying, and spoke of herself and her children as not being safe at the home of her mother, but struggled to explain why. She also made a bizarre allegation against her mother and a male relative that is not supported by a skerrick of evidence, and that I regard as a delusion. She spoke of not liking “where her thoughts were taking her”. According to the mental health worker, although the accused denied auditory hallucinations, she was glancing away for seconds at a time, as if distracted by someone or something. Having said that, the mental health worker did not form the view that the accused was otherwise divorced from reality, and by the time she departed the accused had calmed down.
Later that afternoon, the accused picked up the boys from school at about 3 o’clock. She told her mother that the three of them were going for a swim, and they departed at 4.30 pm. By 7.30 that evening they had not returned, and Mrs Drennan was worried. At 2 am on Thursday, 2 March 2017 she reported the three of them as missing.
The accused had travelled, with her two sons, to Bendigo in Victoria. That was in the company of Mr Cooper. The purpose of the journey is unclear to me. As I understand it, the accused and the two boys slept the night in a motel. Later that morning, at about 11 o’clock, the three of them caught a taxi to the small Victorian town of Goornong. The driver noted that the accused seemed “rattled”, and was texting on her phone distractedly.
On arrival in that town, the accused sought to make contact with a woman who she claimed lived there and was her aunt. She spent some time in a general store, and she seemed as if “she wasn’t all there” according to the proprietor. She phoned her mother a number of times, and asked to be picked up. Mrs Drennan suspected that her daughter was affected by drugs. Eventually, the accused spoke by telephone with Mrs Drennan when the latter was in the company of a community worker, who placed the call on speaker. Each of them heard the accused say “Don’t worry about coming and getting us, you will never see us and the boys again”. The police were immediately contacted.
At about 1.30 in the afternoon, the accused and her sons travelled back to Bendigo, again by taxi. They arrived at about 2 pm, at which time the accused was heard to say “I can’t do this anymore”.
Later again on the same day, a car driven by Ms Aida Cooper, the sister of Mr Cooper, and containing her brother, the accused, and the two boys as passengers, drove from Bendigo to Moama. The purpose of the trip was to facilitate Ms Cooper having access to her own daughter at semi-rural premises that were adjacent to the banks of the Murray River. The party arrived at 4 pm, and things generally seemed happy. It was then that an excursion was made down to the river bank, and after a time the accused was left alone with her two sons.
Tragically, by that time the accused had convinced herself that she and her sons were in mortal danger from a former romantic partner of hers. She had come fervently to believe that he would rape and murder her in front of her boys, and thereafter murder the two of them as well.
Whether that gentleman had, as the accused claims, ever actually inflicted violence on her of any kind is something that I cannot and do not determine, not least because he has not had a chance to be heard before me. But it is important that there is no evidence at all that, after her release from custody in early 2017, the accused and that man had had any contact, or that she and her sons were actually in danger.
As a result of her firmly held belief, the accused was convinced that the kinder fate for her two sons would be for them to be drowned at the hands of their mother. The utter irrationality of a parent believing that the solution to his or her children allegedly being in mortal danger is for them to be killed requires no elaboration by me. Nor does the fact that being forcibly drowned to death is unquestionably a terrible death.
I shall not pause to recount in distressing detail precisely what happened at the river. It is enough to say that the accused made a determined effort to drown the elder boy, who only escaped because he was strong enough to struggle away from his mother’s grasp. Tragically, she succeeded with regard to her younger son.
Edward, the elder boy, suffered aspiration pneumonia, which serves to demonstrate how close his mother came to succeeding. To compound matters, a dog that lived at the premises had followed the party down to the river bank. Seemingly excited by the commotion and struggle, the animal attacked the accused and Edward, each of whom was injured as a result, the young boy seriously so.
Mr Cooper heard the screams, and did his best to rescue the elder boy. Daniel was nowhere to be seen, and his little body was retrieved from the waters by police on 4 March 2017.
In the meantime, the accused had bizarrely decided to float on her back down the Murray River, with the intention that she would be drowned by the wash of passing vessels. She later explained that it had been her intention to kill herself after killing her sons, as part of the plan of escape from the former partner, rather than as an act of contrition. She eventually got out of the water alive, was seen to be erratically walking along a road by a passing motorist, and was eventually taken to a police station by a resident of Moama, after she had bluntly informed him that she had drowned “her babies”.
Eventually, the accused engaged in a lengthy recorded interview with police. Her moods and presentation varied from appearing dazed and flat; to distressed and hysterical; to agitated and enraged. Even making due allowance for the tragic and extreme circumstances, her presentation in that recorded interview must be assessed as disturbed.
The accused has been detained ever since. As one would expect, Justice Health psychiatrists have seen her on many occasions, and I understand her to have been continuously medicated since her return to custody. At first, she spoke openly of hearing voices, though my understanding is that that symptom of psychosis has reduced over time.
Subsequently, she was seen by two highly qualified and experienced forensic psychiatrists, Dr Adams for the Crown and Dr Samuels for the defence. Each of them came to the view that the special verdict is available. In their oral evidence, they took care to explain the bases upon which they rejected the thesis that the disturbed mind of the accused on 2 March 2017 is to be blamed on the external factor of abuse of prohibited drugs, as opposed to an inherent disease of the mind. In that regard, emphasis was placed upon the fact that, as late as October 2017 – when one would expect any such effect to have dissipated completely – the accused retained an ambivalence about whether what she had done could somehow be seen as positive.
To complete my précis of factual matters, I noted during the trial that the accused was distressed, seemingly distracted, rocking from side to side, and at some stages absent-mindedly plaiting her hair.

Elements of the offences

I turn now to discuss in short form the legal elements of the counts on the indictment, and thereafter of the affirmative defence of mental illness.
Counsel and I were agreed that, in circumstances in which the special verdict is raised, one must first consider the actions of the accused, and whether they were voluntary in the sense of being willed and deliberate, without reference to mental elements or mental conditions: see Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 at 517; R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490 at [32].
With regard to both counts, there can be no doubt that the acts of the accused were willed and deliberate movements of her muscles: see Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205.
As for the first count, there can also be no doubt that the acts directed towards the elder boy were sufficiently proximate to the completion of the offence to constitute an attempt at law. I say that because he came close to drowning, as evidenced by his aspiration pneumonia and subsequent treatment by way of mechanical ventilation in hospital.
As for the second count, there can be no doubt that the acts of the accused directly caused the death of the younger boy.
In short, I am satisfied that, in the circumstances of this case, the necessary elements of the two counts on the indictment have been established by the Crown, beyond reasonable doubt.

Elements of the defence of mental illness

I turn now to consider the affirmative defence of mental illness. In doing so I remind myself of the contents of s 37 of the Act, which calls upon me as the tribunal of fact to reflect upon the consequences of a special verdict of not guilty on the ground of mental illness.
As for the legal elements of the defence of mental illness, the accused must prove, on the balance of probabilities, that, at the time of her acts, she was suffering from a disease of the mind that led to a defect of reason on her part, which in turn led her to fail to appreciate either the nature and quality of her acts, or to fail to appreciate that they were wrong. And the law is clear that it is not just a matter of appreciating the legal or superficial wrongfulness of what one is doing; the special defence can be established if a person fails to understand, in a deep and considered sense, the moral wrongfulness of his or her acts: McNaghten's Case (1843) 8 ER 718; The King v Porter [1933] HCA 1; (1933) 55 CLR 182.
As for the first element, each psychiatrist has explained why he is of the view that the accused was indeed suffering from a disease of the mind, as opposed to any transient effect of prohibited drugs or other external condition. I have myself reflected on that alternative thesis, but ultimately reject it, for the following reasons.
First, there is no evidence of direct intoxication at the time of the acts; indeed, the toxicological evidence is to the contrary.

Secondly, although I think it possible that the accused has not been entirely frank about her use of prohibited drugs after her release from gaol, I think it important that her symptoms predate that time by years, and furthermore extended for at least many months thereafter.
Thirdly, it is noteworthy that she was prescribed medication in custody that she no longer cared to take after her release; I think I can take notice of the fact that it is not uncommon for disturbance to re-emerge in such circumstances.
Fourthly, it is also important that, even in custody, she spoke on the telephone to her mother in bizarre, perhaps grandiose, terms.
Fifthly and finally, although it is possible that her condition was made worse by drugs at the relevant time, I am satisfied that there was an underlying and inherent mental condition, even if one discounts that exacerbation.
In short, I accept the unanimous opinion of the psychiatrists that the constellation of conditions from which this woman suffered (including borderline personality disorder, post-traumatic stress disorder, major depressive disorder, psychotic disorder, and perhaps borderline IQ and autism spectrum disorder) together can be understood as constituting a disease of the mind.
Secondly, I am amply satisfied that that disease led to a defect of reason. I say that not only because, on the evidence placed before me, the profound fear of the accused of her former partner as at March 2017 was not rationally based. I have already referred to the additional factor of the thoroughly bizarre, irrational, and self-contradictory belief that, in order to protect her sons, the accused had no alternative but to kill them.
Thirdly, I consider that the accused certainly appreciated the nature and quality of her acts. To be clear: she well understood that she was doing her best to cause the death of her two sons by forcefully holding them underwater in order to deprive them of oxygen and drown them, and that she had succeeded with regard to one of them.
Fourthly, I also believe that the accused in some sense appreciated the legal wrongfulness of her actions. I say that because she only undertook those actions when she was alone with her two boys; she foreshadowed harming them by telephone, only when she was away from her mother; and, when she emerged from the Murray River, she immediately spoke of what she had done, and asked to be taken to a police station.
Fifthly, I have separately reflected carefully on whether the accused did indeed appreciate that what she was doing was morally wrong at the time she did it. For example, I have taken into account her distress when speaking to the police reasonably shortly thereafter, and her appreciation of the loss of the life of her child. I have also taken into account the fact that the accused foreshadowed to her mother in indirect terms what she was going to do, and that in that sense there was perhaps a degree of premeditation, or at least brooding, about harming her sons.
Having taken time to reflect, however, I have come to the view on balance that, far from appreciating the gross wrongfulness of her actions, at the time she performed them the accused believed that she was doing her sons a kindness. As I have said, the whole context of a parent harming his or her children in that way, not through anger or other loss of control, but rather through concern for their welfare based upon a delusion, is suggestive not only of irrationality, but also a complete lack of appreciation of the wrongfulness of what was being done. And as senior counsel for the accused submitted in his final address, it is possible for a person to be subsequently very distressed by the consequences of his or her actions, but nevertheless to have believed at the time that they were indeed the right thing to do.
To conclude my analysis of this element of the defence, I also place weight on the fact that, even months later, when detained and medicated, and speaking to a psychiatrist for the purpose of legal proceedings, the accused did not possess sufficient insight to condemn unequivocally her actions of early March 2017.

Summary of findings

In summary then: I consider that the elements of the two counts on the indictment that are required to be proven beyond reasonable doubt, in the circumstances of this case, have indeed been proven. But I am also respectfully satisfied, on the balance of probabilities, that the expert opinions of the psychiatrists are correct, and that the joint submissions of the parties should be accepted: at the time of her profoundly violent acts against her sons, the accused was suffering from a disease of the mind which led to a defect of reason, which led her to fail to appreciate that what she was doing was immensely wrong. Indeed, I consider that she believed that what she was doing was not only justified, but indeed necessary, and correct.
It follows that the special defence has been established; that there is no need for me to consider the partial defence of substantial impairment; and that I will return a verdict shortly on both counts of not guilty on the grounds of mental illness.

Explanation of meaning and effects of the verdict

There are a number of aspects of those two verdicts that I wish to emphasise and explain for the understanding of the community generally, and in particular for those close to the accused and these two boys.
First, although the accused will not be held criminally responsible for her actions, due to her mental state in the afternoon of 2 March 2017, there is no question but that her acts directly caused the death of the younger boy, and came very close to causing the death of the elder.
Secondly, my verdicts of not guilty do not lessen the overall tragedy of this matter for a moment, the further tragedy of the literally senseless loss of the life of a member of the community, and the particular poignancy of the loss of life of a child.
Thirdly, although as a matter of theory s 39(1) of the Act permits the immediate release, in limited circumstances, of a person found not guilty on the ground of mental illness, there is not the slightest question of that being appropriate in this case. To the contrary, the effect of my verdict and orders will be that the accused will be committed to the long-term care of the Mental Health Review Tribunal. Pursuant to s 43(a) of the Act, that Tribunal must not release the accused into the community unless and until it is satisfied that the accused will not seriously endanger any person, including herself.
Fourthly and finally, nor should my verdicts be understood as lessening the recognition by the criminal justice system of the pain that this matter has caused. I extend my condolences to all of those who have suffered, and will do so long into the future, as a result of the events of 2 March 2017. And I respectfully include in those condolences the accused herself, because I believe that, if she has not done so already, in due course she will come to see the enormity of the consequences of her actions.

Verdict

On the count of attempted murder, I return a special verdict that the accused is not guilty on the ground of mental illness.
On the count of murder, I return a special verdict that the accused is not guilty on the ground of mental illness.
Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990, the accused is to be detained in the designated mental health PODS at Mulawa Correctional Centre, Silverwater, or such other place as may be determined from time to time by the Mental Health Review Tribunal as an appropriate place, until released by due process of law.
The Registrar is to notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by me.
The Registrar is to notify the Mental Health Review Tribunal and Justice Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by me, and to provide those bodies with the following documentation:

A copy of these reasons for verdict and orders;

A transcript of these proceedings; and

A copy of the exhibits tendered at trial.

**********

Decision last updated: 29 November 2018

Medium Neutral Citation:	R v Struthers [2018] NSWSC 1824
Hearing dates:	26 November 2018 – 28 November 2018
Decision date:	29 November 2018
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	(1) On the count of attempted murder, I return a special verdict that the accused is not guilty on the ground of mental illness. (2) On the count of murder, I return a special verdict that the accused is not guilty on the ground of mental illness. (3) Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990, the accused is to be detained in the designated mental health PODS at Mulawa Correctional Centre, Silverwater, or such other place as may be determined from time to time by the Mental Health Review Tribunal as an appropriate place, until released by due process of law. (4) The Registrar is to notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by me. (5) The Registrar is to notify the Mental Health Review Tribunal and Justice Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by me, and to provide those bodies with the following documentation: (a) A copy of these reasons for verdict and orders; (b) A transcript of these proceedings; and (c) A copy of the exhibits tendered at trial.
Catchwords:	CRIMINAL LAW – trial by judge alone – count averring attempted murder – count averring murder – allegation that accused drowned one son, and attempted to drown other son – special defence of not guilty by reason of mental illness – psychiatrists agreed that defence available – verdicts of not guilty on the ground of mental illness
Legislation Cited:	Crimes Act 1900 (NSW), s 23A Criminal Procedure Act 1986 (NSW), s 132 Mental Health (Forensic Provisions) Act 1990 (NSW), s 38
Cases Cited:	Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 McNaghten's Case (1843) 8 ER 718 R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490 Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205 The King v Porter [1933] HCA 1; (1933) 55 CLR 182
Category:	Principal judgment
Parties:	Regina (Crown) Lisa Struthers (a pseudonym) (Accused)
Representation:	Counsel: M Pincott (Crown) E Wilson SC (Accused) Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2017/67645
Publication restriction:	Pseudonyms adopted for child victims, accused, mother of victims, and grandmother of victims, in order to avoid identification of victims, pursuant to s 15A(5) of the Children (Criminal Proceedings) Act 1987 (NSW).