R v Waters

[2015] NSWSC 235

Supreme Court

New South Wales

Medium Neutral Citation:

R v Waters [2015] NSWSC 235

Hearing dates:

23 March 2015

Date of orders:

09 April 2015

Decision date:

09 April 2015

Jurisdiction:

Common Law - Criminal

Before:

Mathews AJ

Decision:

I enter a special verdict that the accused, Eliza Lily Waters is not guilty on the ground of mental illness.

I make the following orders:

1.That she, Eliza Lily Waters, be detained at the Step Down Unit at Silverwater Correctional Centre, or such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law.

2. That the Registrar of the Court notify the Minister for Health of this judgment and order.

3. That the Registrar of the Court notify the Mental Health Review Tribunal of this judgment and order and provide the Tribunal with the following documentation:

(i) A copy of these reasons for verdict and orders;

(ii) A transcript of these proceedings;

(iii) A copy of each of the exhibits tendered at the hearing.

Catchwords:

Murder; judge alone trial; defence of mental illness; special verdict - not guilty on the grounds of mental illness

Legislation Cited:

Crimes Act 1900
Criminal Procedure Act 1986 (as amended)
Mental Health (Forensic Provisions) Act 1990

Cases Cited:

Hawkins v the Queen (1994) 179 CLR
R v McNaghten (1843) 8 ER
R v Newbury [2012] NSWSC 1361
The King v Porter (1933) 55 CLR

Category:

Principal judgment

Parties:

Regina
Eliza Lily Waters

Representation:

Counsel:
Ms E Wilkins SC (Crown)
Ms B Rigg SC (Accused)

Solicitor:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2013/278292

Judgment

1. HER HONOUR: On 23 March 2015 Eliza Lily Waters was charged by way of indictment that, on 13 September 2013, at Medlow Bath in NSW, she murdered Leone Austin. She pleaded not guilty to this charge.

2. An order had previously been made, by consent, that the proceedings be tried by judge alone. Accordingly, the trial proceeded before me without a jury. Both the Crown and the defence tendered a number of documents, all of them by consent. These included a statement of agreed facts. No oral evidence was called by either party, resulting in a very short trial. Both counsel also handed up extremely helpful written submissions. They were in agreement that the appropriate verdict, in all the circumstances, was the special verdict of not guilty on the ground of mental illness.

3. Having now had the opportunity of reading the various documents tendered by the parties, as well as the authorities referred to by counsel, I am firmly of the view that this is the only appropriate verdict in this trial, and it is accordingly the verdict I will be entering. The following are my reasons for reaching this conclusion, as required by s 132(2) of the Criminal Procedure Act 1986 (as amended).

Outline of the offence

4. This is a brief account only of the offence. I shall be describing it in greater detail later.

5. The deceased, Leone Austin, was the mother of the accused. At the time of her death she was living in a house at Medlow Bath in the Blue Mountains of New South Wales. The accused, whose original name was Nicola Louise Austin (commonly called “Nicky”), had changed her name to Eliza Lily Waters. She was living in Blackheath, also in the Blue Mountains. On the morning of Friday 13 September 2013, the accused went by train to her mother’s home for the purpose of leaving her dogs there, as she herself was intending to get a further train to Faulconbridge in order to have a supervised visit with her baby daughter. Unfortunately, she missed the second train, and returned to her mother’s home. An argument developed between the two of them. The deceased was lying on her bed, and the accused picked up one of the pillows and pressed it over her mother’s face. The deceased initially struggled, but then stopped moving. After about two minutes, the accused left the room and smoked a marijuana cigarette outside. When she returned she realised that her mother had stopped breathing. She attempted CPR on her, and rang the ambulance. In due course the ambulance arrived, and officers attempted to revive the deceased, but without success. The police were called and the accused was arrested and taken to the Katoomba Police Station. There she entered into a lengthy recorded interview, which I shall describe in greater detail later.

6. I turn now to describe the accused’s background.

Background of the Accused

7. The accused is nearly 32 years old, having been born on 3 June 1983. She is part aboriginal and identifies as an aboriginal. She has a twin brother who was apparently incarcerated at the time of these events. A younger brother died in 2010 at the age of 22 from a heroin overdose. Her parents separated when she was a child and she was brought up by her mother and stepfather, who was a builder. She attended high school to year 10. At that stage there were no indications of intellectual disability or conduct problems. She was, however, a regular cannabis smoker. Between the ages of 14 and 19 she worked as a retail assistant, a head waitress and a trainee manager of a guest house, all of them in the Katoomba area.

8. In 2002, when she was nearly 19 years old, the accused started to develop serious mental health problems, at times becoming acutely psychotic. This marked the beginning of a number of admissions to psychiatric units over the next decade or so. In 2006 she first came under the care of the forensic psychiatrist, Dr Richard Furst, who provided two expert reports about the accused, dated respectively 5 July and 26 September 2014. These reports were tendered by the defence. When Dr Furst first saw the accused in 2006 she was floridly psychotic, having been found lying on a railway line in the Wyong area.

9. Over the ensuing years the accused presented with a number of psychotic symptoms, including auditory hallucinations, delusions, and impairment in her psychosocial function. She had numerous admissions to psychiatric hospitals. I do not propose to describe these episodes in any detail here. As Dr Furst observed, her medical records occupy some 10 lever arch files. I shall mention only a very few of the more significant episodes.

10. In April 2009, the accused fell pregnant after a “one night stand”. She terminated the pregnancy at 18 weeks, after which she displayed a number of acute psychotic symptoms. She was feeling suicidal, and apparently poured petrol into her vagina, as she was trying to give herself a hysterectomy, saying that she no longer wanted to have children. She had delusional beliefs relating to the Nazis, and sometimes said that she was Hitler’s great granddaughter.

11. In 2012 the accused again fell pregnant. During her pregnancy she spent eight weeks as an inpatient in a psychiatric hospital in Katoomba. On 6 January 2013 she gave birth to a daughter, Jonte Celine Austin, by way of caesarean section following a very long and difficult labour. She had been looking forward to motherhood, and had made a number of preparations in order to accommodate the baby, including buying a pram, a change table, a baby gym and nappies. She had been compliant with her medication and appeared to be doing well. However five days after the birth, on 11 January 2013, the baby was removed by the Department of Family and Community Services (“FaCS”), and put into the charge of a foster carer. On all accounts the accused was devastated by this. In due course she commenced proceedings in the Children’s Court, seeking custody of her daughter. These proceedings were still pending at the time of this offence. The accused’s mental condition deteriorated after her daughter was removed. She was allowed three supervised visits to her daughter each week, and these became the centre of her focus. She was highly stressed and anxious as a consequence of her prolonged custody battle with FaCS, and according to Dr Furst she suffered a relapse of her psychotic symptoms in the form of ‘voices’ and paranoid thinking.

12. At that time the accused was living alone in a flat in Blackheath which was provided by Mission Australia. She had been living there for some two years. She was on a disability support pension, because she already had a diagnosis of schizophrenia.

13. In the days preceding 13 September, the accused was involved in a number of bizarre activities. On the afternoon of 9 September she went to Blackheath Caravan Park and told the staff that she had been attacked at the train station. She asked them to call an ambulance as she had a cut on her leg. The staff did so, but the accused left before the ambulance arrived. She was seen crawling along the grass with her two dachshund dogs following behind her.

14. The next day, 10 September, the accused called the police and reported an assault. When they arrived at her home that afternoon she told them that she had had a fight with a friend at the Blackheath train station, and she was concerned that she had hurt her friend. She said that she was feeling “brain dead”. Not long afterwards ambulance officers arrived and escorted the accused to Katoomba Hospital so that she could “talk to the doctor about her feelings.” She remained in hospital overnight, and was released the following afternoon. Later that afternoon (11 September), a neighbour saw the accused pushing her two dogs in a baby stroller. Her demeanour was different, and the neighbour became very concerned. She was even more concerned about an hour later when the accused knocked on her door. She, the accused, was limping and was extremely upset. She was also wet and muddy, and she told the neighbour that she had nearly drowned in the Blackheath Pond with her dogs.

15. The following day, 12 September, the accused told the same neighbour that her mother had molested her as a child and that she was a bad and evil mother who had never loved her. She was talking about Hitler and Eva Braun, and saying that they had had secret daughters. She said that she wished the voices in her head would stop. Later that day the accused invited the neighbour and a friend into her unit for a cup of tea. She again said that her mother was bad and evil and was not really her mother. She took a large photograph of her mother out of a photograph album and ripped it up in front of them. The two women were so worried about her behaviour that they went to the Katoomba Police Station that afternoon and told police about their concerns. The police later attended the accused’s home, but the accused said that she was fine.

16. That night, according to what the accused told police the next day in her ERISP, she did not go to bed until about 5 in the morning, and only slept for one hour.

17. This takes me to the events of 13 September, and particularly to the circumstances of the offence itself.

Circumstances of the Offence

18. It goes without saying that, as there were no witnesses to the killing, any account of what happened can only derive from what the accused said about it afterwards, as well as from the physical evidence at the scene.

19. On the morning of 13 September 2013, the accused took the 8.09 am train from Blackheath to Medlow Bath, intending to leave her dogs with her mother before she herself took the 10.13 am train from Medlow Bath to Faulconbridge in order to have a supervised visit with her daughter. The visit was due to take place at 11.30 am at the FaCS office at Faulconbridge. When she first arrived at her mother’s home her mother suggested that she get herself some breakfast, which she proceeded to do. In due course she left for the station, but the clock at her mother’s home had been slow, and as she approached the station she heard the Faulconbridge train departing. She was extremely upset, as she had missed her previous visit to her daughter when she had been hospitalised two days earlier. She returned to her mother’s home. Shortly afterwards her mother went to her bedroom and lay down on her bed. The accused followed her and asked to borrow her phone as she wanted to talk to her twin brother. Her mother refused. The accused then asked to borrow her mother’s car so that she could drive to Faulconbridge and see her daughter. (I should interpolate here that the accused did not have a driver’s licence at the time). The deceased again refused, saying “no, there’s no way you’re going to take my car.”

20. At this point, the accused said she “snapped”. She jumped on top of her mother and grabbed a pillow which she put over her mother’s face. She was hearing voices at the time. Her mother pushed the pillow off and said “please, Nicky, don’t. I love you.” The accused then pushed the pillow back down on her mother’s face and held it there. After about two minutes her mother stopped moving and the accused got off the bed. She went outside and rolled a marijuana joint. Then she started to wonder about what she had done. So she went back into her mother’s bedroom. Her mother’s face, she said, was purple and distorted, so she started to perform CPR on her, breathing into her mouth and compressing her chest. She kept saying to her: “Mum. Just stay with me, you’re going to make it through.” She was convinced that her mother was reviving, and had squeezed her hand, so she rang the emergency number and asked for an ambulance.

21. At about this time the voices returned. They were saying “leave her, just leave her, she doesn’t deserve to live”. So the accused went outside again and had another cigarette. Then the voices changed, and said “you’ve got to save her, she’s still alive.” So she went back in. She was convinced that her mother was still alive. Indeed, she later told the police that her mother had a smile on her face, and had been waiting for the accused to come back and continue the CPR. This she did until the ambulance arrived at 12.06 pm. When the officers arrived the accused called out “hurry!” They went into the bedroom where the accused was bent over the deceased’s body. She said in a panicky voice “give her oxygen! Give her oxygen!” At that time the deceased had no pulse and did not appear to be breathing, but was warm to the touch.

22. The ambulance officers asked the accused what had happened. She answered: “I suffocated her. She raped me as a child.” They then called the police. When the police arrived the accused was in a highly distressed and confused state. She was arrested and taken to Katoomba Police Station.

23. At approximately 12.37 pm the ambulance officers ceased CPR on the deceased and she was pronounced dead. A subsequent autopsy confirmed that the cause of death was asphyxia.

The Accused’s Interview

24. The interview (or “ERISP”) commenced at 7.03 pm on 13 September. At the outset the accused asked to be addressed as “Nicky”. Given that, on her own account, she had had only one hour’s sleep the previous night, and given the traumatic events of that day, she was able to give a surprisingly coherent account of events through much of the interview, although there were occasions when she appeared to be in a highly deluded state. For example, at one point she said that the reason for her schizophrenia was that 11 years earlier she had been brutally raped, after which some people had made her give birth to twins which they took from her, and that they had then “had sex with my eardrums”, which she described as an old Chinese torture method. On another occasion she said that a couple of weeks earlier her mother and a friend had planned to kill her by throwing her off “the Grand Canyon”, as she described it, in Katoomba.

25. The interview lasted for over one and a half hours, and the transcript occupies some 47 pages.

26. As already indicated, the accused’s description of the circumstances of the killing was surprisingly coherent and the various accounts she gave were generally consistent. Indeed, by necessity, my earlier description of the circumstances of the offence derives almost entirely from what the accused said in this interview, as well as from what she later said to the psychiatrists.

27. I turn now to discuss the issues which require determination in this case.

Issues for Determination

28. The accused having been charged with murder, it goes without saying that it is incumbent upon the Crown to prove beyond reasonable doubt the essential ingredients of that offence, as relevant to the circumstances of the particular case. In the present case, the defence of mental illness having been raised, the matters to be proved by the Crown, at least in the first place, are significantly reduced, as I shall explain shortly.

29. The Crown must prove in all cases that it was a voluntary or intentional act of the accused which caused the death of the deceased. A “voluntary or intentional act” is to be contrasted with an involuntary or accidental one. In determining this matter, the Court is not to have regard to the evidence as to the accused’s mental state. If this matter is established beyond reasonable doubt the Crown must, in the normal course of events, also prove that the accused had the requisite intention for murder at the relevant time. However, when the defence of mental illness has been raised, different principles apply, as confirmed by the High Court in Hawkins v the Queen (1994) 179 CLR 500. In that event the next matter for consideration is whether the elements of that defence have been established by the accused on the balance of probabilities. If so, there is no need to consider the accused’s intention at the time (see also R v Newbury [2012] NSWSC 1361). The reason for this is obvious when one thinks about it: The mere fact that the accused suffers a mental illness which is serious enough to give rise to this defence will, in a significant number of cases, mean that he or she will lack the capacity to form the requisite intention for the offence in question. This being the case, it would defy both common sense and justice if an accused person were to be deprived of the defence of mental illness by reason of the fact that the Crown was unable to prove the specific intent relevant to the particular offence.

30. In the present case there can be no doubt that it was the accused who physically caused the death of the deceased by asphyxiation. Similarly, it is abundantly clear that the accused’s act in pushing the pillow over her mother’s face was a voluntary and intentional one in the relevant sense. Indeed, this has never been disputed by the defence. Accordingly, the next significant matter to be considered relates to the accused’s mental state at the time, and particularly whether the defence of mental illness has been made out so as to lead to a special verdict of not guilty on the ground of mental illness In accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 (“the Act”).

The Defence of Mental Illness

31. There is no statutory definition of the defence of mental illness. It has long been established that, once this defence is raised, it is to be resolved in accordance with the rules set out in R v McNaghten (1843) 8 ER 718 (“the McNaghten Rules”). Under these rules the accused must prove, on the balance of probabilities, that at the time of committing the relevant offence she was labouring under such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of her act, or, if she did know it, that she did not know that what she was doing was wrong.

32. There are a number of concepts involved in this definition. I shall be very brief in explaining them here, for it is accepted by both the Crown and the defence that the accused in this case meets all relevant criteria.

33. Underlying this defence is the requirement that the accused suffer from a “disease of the mind”. This means that the accused must have been suffering from a mental disorder or infirmity at the time of the offence which led to a “defect of reason”, namely, an inability to think rationally, which in turn means that either she did not know the physical nature of her act at the time or, if she did know it, she did not know that it was wrong, in the sense that she “was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which (s)he was doing” (per Dixon J in The King v Porter (1933) 55 CLR 182).

31. With this background I now turn to discuss the psychiatric evidence in this case.

Psychiatric Evidence

35. The Crown tendered a lengthy report of the forensic psychiatrist, Dr Stephen Allnutt, dated 17 October 2014. Dr Allnutt had interviewed the accused at the Mullawa Correctional Centre on 2 October 2014, and had been provided with all relevant documentation in relation to the charge. He noted the accused’s previous diagnosis of schizophrenia and that she had a family history of schizophrenia. He described the unusual behaviour of the accused in the days leading up to the killing. He expressed the opinion that the accused’s symptoms were consistent with paranoid schizophrenia. At the time of the offence she was experiencing auditory hallucinations, persecutory beliefs and referential ideas. She had a delusional belief that her mother was involved with bikies and a conspiracy; and she heard a voice saying “take her life”. As to her capacity to reason about the wrongfulness of her act, Dr Allnutt said the following:

“While she might have had capacity to have some awareness of the wrongfulness of her actions at the time of the alleged offence (given her post-offence behaviour), on balance her psychosis at the time would have compromised her capacity to reason about the moral wrongfulness of her actions adequately with a moderate degree and sense of composure as a person of normal mind might.”

36. On this basis Dr Allnutt considered that the accused has the defence of mental illness available to her.

37. Ms Rigg SC, who appeared for the accused, tendered two reports of the forensic psychiatrist, Dr Richard Furst, dated respectively 5 July and 26 September 2014. As already noted, Dr Furst had previously seen the accused, the first time being in Wyong Hospital in 2006 after the accused was found lying on a local railway line. For the purpose of his present reports, Dr Furst interviewed the accused at the Mullawa Correctional Centre on 14 May 2014. He had also been provided with all relevant documentary material relating to the present case.

38. In his first report Dr Furst described the numerous occasions on which the accused had been admitted to psychiatric units over the years preceding the events we are concerned with here. Her first period of hospitalisation was between April and May 2002 when she was displaying symptoms of paranoia. The last occasion was on 10 September 2013, only three days before the present offence, when she was admitted to the Katoomba Hospital overnight and released the next day.

39. Dr Furst considered that the accused suffered from chronic treatment resistant schizophrenia. This condition was exacerbated by her cannabis abuse. At the time of the killing there was evidence of paranoid delusions, auditory hallucinations and Capgrass delusions. (A Capgrass delusion is otherwise known as a delusional misidentification syndrome. In the accused’s case she believed that her mother had killed her real mother and switched her at birth; she also believed that she was related to Hitler). The accused was aware of her actions at the time, but, by reason of her illness and the auditory hallucinations she was experiencing, she was unable to reason about the wrongfulness of her actions with a moderate degree of sense and composure. She was accordingly unaware of the wrongfulness of her actions.

40. Accordingly, Dr Furst also considered that the accused has the defence of mental illness available to her.

41. Dr Furst wrote his second report, dated 26 September 2014, after having been provided with further material relating to the circumstances surrounding the present offence. He remained of the view that the accused has the defence of mental illness available to her, for the reasons outlined in his earlier report.

Determination

42. The expert evidence being all one way on this central issue, I am thoroughly satisfied that, at the time that the accused asphyxiated her mother, she was suffering from a mental illness as defined in the McNaghten Rules. It follows that a special verdict is to be entered that she is not guilty on the ground of mental illness.

Explanation

43. Section 37 of the Act requires the presiding judge to explain a number of matters to the jury in a trial where the defence of mental illness has been raised. There being no jury here, this section has no direct application. However for the sake of the record, it should be noted that I was already aware of those matters.

44. I consider it appropriate, in the circumstances, to briefly explain the practical effect of the verdict I am about to deliver.

45. A verdict of not guilty on the ground of mental illness does not mean that the accused did not kill the deceased. Indeed, all the evidence clearly shows that she did, and I have made a positive finding to that effect. The verdict means that, because of the severity of the mental illness suffered by the accused at the time of the killing, she cannot be held criminally responsible for her actions. Accordingly, I shall not be imposing any sentence upon her, as I would have done had she been found guilty of this charge.

46. This does not mean, however, that the accused will be free to re-enter the community. She has been in detention, in a psychiatric unit, until now and she will remain in detention indefinitely. Her case will be referred to the Mental Health Review Tribunal. This is an expert body which will regularly review her situation. She will only be released if the Tribunal is satisfied that her release will not seriously endanger the safety of herself or any member of the public.

Verdict and Orders

47. In relation to the count of murder, I enter a special verdict that the accused, Eliza Lily Waters is not guilty on the ground of mental illness.

48. In addition I make the following orders:

1. That she, Eliza Lily Waters is to be detained at the Step Down Unit at Silverwater Correctional Centre, or such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law.

2. That the Registrar of the Court notify the Minister for Health of this judgment and order.

3. That the Registrar of the Court notify the Mental Health Review Tribunal of this judgment and order and provide the Tribunal with the following documentation:

(i)   A copy of these reasons for verdict and orders;

(ii)   A transcript of these proceedings;

(iii)   A copy of each of the exhibits tendered at the hearing.

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Decision last updated: 09 April 2015