Re Matthews
[2012] QMHC 28
•31 May 2012
MENTAL HEALTH COURT
CITATION:
Re Matthews [2012] QMHC 28
PARTIES:
REFERENCE BY LEGAL REPRESENTATIVES IN RESPECT OF KYLE MAREE MATTHEWS
PROCEEDING NO:
No 0256 of 2011
DELIVERED ON:
31 May 2012
DELIVERED AT:
Brisbane
HEARING DATE:
16 and 17 April 2012
Written submissions - 4 May 2012JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr J M Lawrence
Dr E N McVieFINDINGS AND ORDERS:
1. That at the time of the alleged offences the defendant was not of unsound mind.
2. That at the time of the alleged offences of murder the defendant was not of diminished responsibility.
3. The defendant is fit for trial.
4. The proceedings against the defendant are to continue according to law.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant was charged with two counts of failing to supply the necessities of life and two counts of murder in relation to her 18 month old twin children – where there was conflicting expert psychiatric opinion as to the level of the defendant’s functioning and whether she had been deprived of any of the capacities at the time of the alleged offences – whether defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences – whether the defendant had diminished responsibility in relation to the murder charges as per the Schedule of the Mental Health Act 2000 (Qld) and s 304A of the Criminal Code Act 1899 (Qld) – whether the defendant is fit for trial
Criminal Code Act 1899 (Qld), s 27, s 304A
Mental Health Act 2000 (Qld), Schedule, s 267, s 268COUNSEL:
S Ryan for the defendant
J Tate for the Director of Mental HealthD Meredith for the Director of Public Prosecutions
SOLICITORS:
Legal Aid Queensland for the defendant
Crown Law for the Director of Mental HealthDirector of Public Prosecutions (Qld)
LYONS J:A
This Reference
Kyle Maree Matthews and Mark Jackman are each charged with four counts on an indictment;
(1) Counts 1 and 2 are charges of failing to supply the necessities of life to their 18 month old twin children between 31 December 2007 and 17 June 2008; and
(2) Counts 3 and 4 are charges of the murder of the twins on a date unknown between 8 June 2008 and 17 June 2008.
The co-accused is Ms Matthews’ de facto partner of 12 years. He is also the father of five of her six children, including the 18-month-old deceased twins. At the time of the alleged offences, Ms Matthews was residing in rented accommodation on the south side of Brisbane with her partner and six children. At the time of her arrest the surviving children were aged 11, 9, 5 and 3. Mr Jackman was working fulltime and Ms Matthews was a fulltime parent to the children.
A reference in relation to Ms Matthews’ mental condition at the time of commission of the alleged offences was initially filed by the legal representatives for Ms Matthews in the Mental Health Court in 2008. An application to withdraw that reference was subsequently filed by Legal Aid on 10 July 2009 and granted by the Court on 11 August 2009. This further reference by the legal representatives for Ms Matthews was filed on 26 September 2011.
There are five psychiatric reports prepared in relation to this reference. There are reports from Dr Josephine Sundin, Dr Peter Fama, Dr Pamela van de Hoef, Dr Angela Voita and Dr Dominique Hannah. A psychological assessment was also performed by forensic psychologist Peter Perros.
Prior to turning to the evidence of the psychiatrists it is necessary to consider the factual basis of the charges in some detail.
The circumstances of the offences
The Queensland Police Service court briefs indicate that on the afternoon of Monday 16 June 2008 whilst Ms Matthews was at the shops, her eldest child walked past the bedroom where the twins were sleeping and smelled something. She then entered the room and saw that the children had died. When Ms Matthews returned, her daughter told her she now knew why Ms Matthews had been crying lately. Ms Matthews waited for her partner to return home and then informed him the twins had died. She then called her adoptive mother who arrived a short time later and called the police.
When the police arrived they located the decomposing bodies of the twins lying in a cot. A search of the house by police found that the house was in disarray with a strong odour. The statements from the scene of crime officers indicate that the house was in a dirty and unkempt state with piles of clothing covering the floors in many of the rooms. There were washing baskets full of clothing. The kitchen was dirty with food on the floor and the cupboards and walls were dirty. There were no sheets or mattresses on the beds in two of the bedrooms and one of the bedrooms had a mattress that was stained and wet with urine. The toilet had rubbish on the floor and faeces on the walls and the toilet seat. The room with a double bed had no sheets on it and there were beer bottles and mouldy food on the floor.
When initially interviewed by police Ms Matthews informed them that she had been having significant relationship problems with her partner and he had not been providing any support for the children and had not seen the twins for several weeks.
Ms Matthews advised police she had discovered the children were dead sometime on either Sunday, 8 June 2008, or Monday, 9 June 2008. She was unable to recall when she had previously seen the children alive. Ms Matthews stated that in the two weeks previous to finding them dead she had the flu and had only been feeding the children with a bottle. She indicated that she changed them only occasionally and that they rarely left their bedroom. She stated to police that she assumed her partner was attending to the children’s needs when she was sick. She told police she believed their deaths were because she had not fed them enough.
Mark Jackman told police that he had had nothing to do with the twins since December 2007 and he had nothing to do with the day-to-day running of the house. He stated that he had not checked on Ms Matthews and whether she was providing appropriate care to the twins.
The post mortem examination
A post-mortem examination revealed that one of the twins weighed approximately 4.9 kilograms and the other weighed approximately 4.7 kilograms, rather than the expected weight for their age of 9.2 to 13 kilograms. Both were severely malnourished. Records with the medical practitioners revealed the children had weighed 8 kilograms each in August 2007.
Subsequent inquiries revealed that no person apart from Ms Matthews and the older children had seen the twins since March 2008.
Ms Matthews was interviewed extensively by police on two occasions in the days after her arrest. It is necessary to set out the contents of those interviews in some detail as it contains a contemporaneous account of her thinking at the time the children’s bodies were discovered.
Police interview on 16 June 2008
Ms Matthews was first interviewed at length on the evening of 16 June by police. When first interviewed she indicated that she was fairly sure she had checked on the twins one afternoon and they were okay and that the following day they were dead. She was uncertain as to the actual time difference but thought it was only a day apart. She described finding them. She said their eyes were open and they were both cold to touch. They had the same appearance. They were lying on their sides. When she discovered them she stated the following:
“And then I got closer and I looked at them, and you know just looked at them then I shooked em, to shook you know touch them both, and yeah… by looking at them I could it that they, and touching them and the way they were (unintelligible) you know like a jelly type cause that’s not them.”[1]
[1] Transcript of Tape Recorded Interview between Detective Sergeant T King, PC Constable J Harman and K Matthews dated 16 June 2008 at 4.
She indicated she could see they were both dead. In terms of her reaction she stated the following:
“And um, yeah I got quite a stunned and that’s when I walked out of the room for (unintelligible) to the main bedroom and yeah when I walked in Mark said ‘What are you doing’ and all gruffly and then yeah the kids were all playing up so I went out and then looked after them, cause I didn’t know how to tell him… that they were… not alive and then that’s when I waited for him to wake up and I’m pretty sure that’s the same day he went out. But yeah, what, what did you ask again (unintelligible) I’m sorry I’m so tired.”[2]
[2] Ibid 5.
Ms Matthews confirmed that the day after she found them dead she went into the room and moved them into the same cot. She explained, “My reasoning to pick them up was just, I didn’t know cause I didn’t, didn’t want to believe that they were dead, I don’t know.”[3]
[3] Ibid 7.
During the interview Ms Matthews described her eldest daughter finding the twins a week after they had died. Ms Matthews stated that she had gone down to the food store at the bottom of the road. She bought a chicken to make the children some sandwiches, a bottle of coke, some ‘smokes’ and some lollies because they were all at home.
Ms Matthews told police that she had used the internet regularly;
“yeah every now and then regularly… just use it for websites, you know, check emails, that’s about it. I did get onto a program (unintelligible) but then I removed it cos it was taking up too much of my time.”[4]
[4] Ibid 17-18.
She said she had used the computer the afternoon the twins were found and had checked her internet banking. She also looked at YouTube before she closed it. She was able to indicate to police her internet provider and the gigabyte capacity of the computer. She also explained the cost of the internet package she had.
Ms Matthews confirmed that since December 2007 the twins had spent a lot of time in the bedroom and in the couple of weeks that she was sick they never came out of their room, “only just for a quick bum change, that was it”.[5] She confirmed that the twins were basically housebound for several months.
[5] Ibid 24.
Ms Matthews said that she was not feeding them food regularly and was not feeding them properly. She said, “Um… I think it was once or twice. Um… once or twice a day, that was about it… not properly.”[6] Ms Matthews stated that when she fed them she would make up a bottle each and give it to them. She indicated they would feed themselves and would always finish their bottles. She said the last feed she gave them was on the afternoon before they died and that they had finished their bottles because when she went into the room the bottles were empty. She stated:
“Well that’s what I said, you know like they’d be wake up and they were crying and then I’d hear them up saying something you know that they need to be fed so I you know just thought well I thought I remembered going in and giving them a bottle.”[7]
[6] Ibid 25.
[7] Ibid 32.
Ms Matthews told police that her eldest daughter would try and mother them and “I would tell her you know, just leave them, she wanted to mother them kind of thing but that was about it.”[8] When asked what was wrong with that she replied “Nothing really just I didn’t want her you know going in their room and picking them up kinda thing. It’s always just been my way with all of them.”[9]
[8] Ibid 26.
[9] Ibid 27.
Ms Matthews indicated that the other children were fed and “they’re not starved”.[10] She told police that her other children would either take a packed lunch to school or have tuckshop and that in the evenings they had recently bought a lot of takeaway. She also stated that she would cook many of the dinners at night as well. She stated that usually they would get takeaways on Fridays but the rest of the week she would make up the food and cook dinner.
[10] Ibid 31.
Ms Matthews indicated that she had bathed the children two days before they died. She bathed them about every two days and she would normally just wipe them over with nappy wipes after she changed them.
Police interview on 18 June 2008
A further interview was conducted on 18 June 2008 at 1.03 pm. In that interview Ms Matthews confirmed that her relationship with her partner had deteriorated in the months leading up to the deaths of the twins. She confirmed that his drinking got heavier. He would come home and abuse them after he had been drinking. She stated he was hardly ever around. As a response to this she indicated that she used the internet a lot more. He was playing poker a lot and on Friday nights he would not come home until 2.00 am and then he would sleep most of the weekend.
She stated that during the week he would come home with a six pack of beer, drink the six pack and then go out and play poker. If he was not doing that, he was in the main bedroom. She indicated that up until January or February he was interacting with the children but after that he did not do very much at all. She stated that the last time she had brought the twins to him was in February. She asked him to hold her twin daughter as she was busy with the other children and his response was that it was a big drama just to pick her up.
Ms Matthews stated that she told Mark that she was not coping and had said to him, “I think I need to give them away.”[11] He had responded by saying that that was ‘rubbish’. She stated that he never went out of his way to find out why she wanted to give them up. She indicated that in late February or early March she confided in her mother that she needed to give the twins up. When asked why she felt that way, she replied “Because I knew, I was (unintelligible) I just felt that I wasn’t doing enough for them. There just wasn’t enough time to go around for all of them.”[12] She stated that in the months leading up to the deaths of the twins she would go into their room in the mornings and give them a bottle and change them and then she would put them in the lounge room with their brother. She stated:
“as I got more depressed about our situation, no money and things like that I just kind of like, and [one of my children] was running off, you know running away and things. Like, you know be running down the street after him and I’d have to put them back in their room and (unintelligible)”.[13]
[11] Transcript of Interview between Detective Senior Constable D Kemball, PC Senior Constable G Hughes and K Matthews dated 18 June 2008 (Tape 1 of 3) at 10.
[12] Ibid.
[13] Ibid.
Ms Matthews told police “I knew deep down that they needed to go, you know, they needed to get help.”[14] When asked what made her think that, she responded “‘Cause of their weight.”[15] She confirmed that up until May they seemed all right. She stated that in the previous December they had been crawling and they would stand up in their cot. She stated that neither of the twins ever walked. When asked why she replied, “‘Cause lack of interaction with him”. When asked how much interaction she had with the twins in the last few weeks she stated that she would go into the room probably three or four times a day but not for very long. She stated that they were lying in their cots and would cry until they were given a bottle.
[14] Ibid 11.
[15] Ibid.
She stated she would bath them at least twice a week “until (unintelligible) they got really sick. And then I stopped.”[16] She stated they got really sick two weeks before she found them dead. She stated that she realised the children’s weight loss was a problem around the time of her birthday in April. Ms Matthews explained:
“I just felt like if they had bottles, if they weren’t crying, they were out of the way, you know, if I knew that they were okay. Because the other four were just, just everywhere. They, you know, they were just, they. I had them, you know one leaning out the window, one’s you know in the lounge room, one was in another place…”
[16] Ibid 16.
Ms Matthews advised that she used the computer for about six hours a day. Whilst she used the chat line ‘Yahoo!’, she stated that she did not discuss online the difficulties she was experiencing. She indicated that life became very difficult after Christmas because Mark lost his driver’s licence. At that time she was giving the twins a regular diet including meat and vegetables, cut up sandwiches, as well as cereal and fruit. That had ceased about February. When asked the reason behind the diet being changed only to formula, she stated “My laziness”.[17] She stated “Um I, I knew that formula was okay. I, I kept telling myself I have to start getting these kids back to normal. I, you know, I knew what I was doing was wrong. You know, I knew they were losing weight and I tried to give them some jar food.”[18] She said they didn’t like the taste of jar food. She confirmed that the children were getting a lot smaller and “had lost a fair bit of weight. Um, um they’d got a lot smaller. Um, ‘cause they were nearly. They were a size 0.”[19] She indicated that the children started to look skinnier in the face and bottom. They looked ‘withdrawn’ and bit sunken on the cheeks.
[17] Ibid 25.
[18] Ibid.
[19] Ibid 26.
Ms Matthews indicated that she had broached the subject of giving the twins up six or seven times with her partner but he would just shrug it off. She stated that one of the twins was standing, aided by furniture, around Christmas time and the other twin was also crawling and quite active at that time. Ms Matthews told police that by March she noticed that by March they were not as active as they were before. She stated that they were “just laying, just laying about… They were just rolling. That was just it.”[20]
[20] Ibid 29.
When asked what she thought would happen to the twins if she did not give them up, she replied “I didn’t know what would happen. I didn’t know. I kept telling myself that tomorrow I was going, you know. I was just going to fix them. I was going to do everything right. I was. I just don’t know how long? How this just got out of hand how long it went?”[21]
[21] Ibid 30-31.
Ms Matthews also discussed in greater detail the fact she had known the twins were dead for over a week and had said nothing. She said that she knew the cause of their death was not feeding them properly. When asked why she thought that was the cause she replied:
“Because that week previous that I found them I don’t think I I don’t think I was going in there probably once or twice twice a day I gave them a bottle and went back to sleep on the lounge. Mark and I have had this massive we’re just arguing all the time when he was home at night time and things like this he just had no money.”[22]
[22] Transcript of Interview between Detective Senior Constable D Kemball, PC Senior Constable G Hughes and K Matthews dated 18 June 2008 (Tape 2 of 3) at 12.
Ms Matthews then stated that the last time she saw the two children alive was Saturday which was a day or two before she found them. She described her son as being lethargic and that he was “really drawn and skinny”.[23] Ms Matthews stated that over that Queen’s Birthday weekend she got pretty sick and she did not go and see them for two days. She realised she had slept for nearly one whole day and that they had not been fed that day and that there was probably a gap of two days when she did not give them a bottle. When she woke up on the Monday she realised that she had not heard the twins. She said she was pretty sick on the Sunday night and that her memory was hazy of that weekend.
[23] Ibid 13.
Ms Matthews advised that the last time her mother or her adopted mother saw the twins was about March. She told police that when they asked to see them she would say they had just gone to sleep. When asked why she would not let them see the children, she confirmed that she did not want them to see the children because they “were smaller”.[24] She stated that the twins were in fact asleep a lot of the time. Ms Matthews indicated that she thought Mark was deliberately avoiding contact or any sort of interaction with the twins and clarified that she had not asked him to take care of the twins when she was sick. She indicated that he had plenty of opportunities to go and look at them or feed them or give them a bottle. She stated that he would have heard them crying but did nothing.
[24] Transcript of Interview between Detective Senior Constable D Kemball, PC Senior Constable G Hughes and K Matthews dated 18 June 2008 (Tape 3 of 3) at 6.
When asked why she did not feed the twins she stated that she put them “out of sight. So I could deal with the other four”.[25] When asked “Was your not feeding these kids a way that you would be free of these children?”, she replied that she did not want “that they were dead or anything”[26] and that when she said she wanted to get rid of them she meant that “I jes wanted someone to take them”.[27] She indicated that she did not deliberately starve her children: “No. No. No I didn’t deliberately do it. I didn’t think they would get this bad.”[28] She stated it was in March or April she observed signs of malnutrition and starvation.
[25] Ibid 14.
[26] Ibid.
[27] Ibid.
[28] Ibid.
In summary Ms Matthews agreed that she gave the babies nothing but formula from the time they were 15 months old and that in the weeks leading up to their death she sporadically gave them a couple of bottles a day. She confirmed that in the end she knew they were not getting enough and that it was not right. She agreed that they had not seen sunlight in the three months since March. When asked why she did not ask for help she stated “When they got too small I was really scared that I was going to be in a lot of trouble. I tried to fix it.”[29]
[29] Ibid 26.
Statement by Judith Holland
Judith Holland is Ms Matthews’ adoptive mother. She stated that she had previously held no concerns for Kyle’s ability as a mother. The children had always appeared to be healthy and well fed. The two older children went to primary school and the two middle children went to day care three or four times a week. Ms Holland confirmed that since the twins were born, Mark’s drinking had become worse and that he would drink at the pub and play poker every night. Ms Holland confirmed that Ms Matthews’ biological mother had helped her with the children and had stayed over until early 2008 when she was told that she was not required any more and that Kyle did not want her to stay over.
Ms Holland stated that she saw the four older children every weekend and that she often had the children for the entire weekend and they would stay with her. She stated that Mark would usually bring the children over and pick them up. She said she last saw the twins at Christmas time in 2007. The twins were in the back of the car in car seats and appeared happy and healthy. Ms Holland confirmed that Kyle used to go shopping with the twins and her biological mother, Sue, but that that shopping had ceased in recent months and that in the month previously Kyle did not want to do anything. She did not want to go shopping, take the kids to school or leave the house.
Ms Holland also indicated that Kyle was sleeping on the couch in the lounge room and was also spending time in chat rooms on the computer in the lounge room. Mark was concerned about her computer use and the eldest daughter told Ms Holland that “mum’s on the computer all the time now”.[30]
[30] Statement of J A Holland dated 17 June 2008 at 53.
Ms Holland stated that in late May 2008, three weeks before the twins were found, her granddaughter, Ms Matthews’ eldest daughter, called her crying, saying that the twins looked thin and that they looked terrible. Ms Holland indicated that when she went to the house the next day and tried to see the twins she was refused access to them. She heard the twins crying and Kyle said she was going to give them a bottle. When she asked if she could see the twins, Kyle said “after they have their bottle”.[31] Although she was there for an hour she was not allowed to see them. Ms Holland’s granddaughter again expressed concerns to her about the twins on the following weekend at which point she asked Mark who replied that they were ‘all right’.[32]
[31] Ibid 60-61.
[32] Ibid 66.
Ms Holland stated that the following weekend she asked about the twins again and Mark replied that he did not know how they were. Contact after that was sporadic and consisted mainly of Mark dropping the children over for her to take care of. On 14 June when Ms Holland’s granddaughter was at Ms Holland’s home for her birthday, Ms Holland asked her how the twins were but she told her that she did not know as she had not seen them for over a week.[33]
[33] Ibid 72-76.
On 16 June Ms Holland indicated that about 6.00 pm she got a phone call from Kyle saying that she wanted her to come and get the kids. When Ms Holland said to Kyle she needed to get help she replied “it’s too late for that” and informed her that the twins were dead.[34] When Ms Holland arrived at the home and asked what had happened, Kyle replied “They were crying. I gave them a bottle but they kept crying. I walked out.”[35] Ms Holland asked Kyle “Didn’t you feed them since.”[36] Kyle replied “No”.[37] Ms Holland stated that to her knowledge Kyle had never suffered depression.
[34] Ibid 90-92.
[35] Ibid 108.
[36] Ibid 109.
[37] Ibid 110.
Police interviews with Ms Matthews’ eldest daughter and son
Ms Matthews’ eldest daughter, who was eleven at the time, was interviewed by police on 17 and 21 June 2008. She confirmed the deteriorating relationship between her parents and the extent to which her father was absent from the home. She also outlined the chaos at home and that her brothers were difficult to control. She stated that “my mum’s been depressed because Dad never helps around the house. He always goes to poker and then he shows up at like eleven thirty at night.”[38]
[38] Transcript of Recording between Sergeant P Dowling and Ms Matthews’ eldest daughter dated 17 June 2008 at 5.
In terms of her mother’s interaction with the twins, the daughter said:
“Well they hadn’t been coming out of their rooms much because Mum’s been so upset with Dad, she it hadn’t come to her and um when her computer arrived um she she’s been really addicted to it, she hasn’t been going off it, and um oh I think that’s it.”[39]
[39] Ibid.
Ms Matthews’ daughter referred to her parents at the time as being “more crazy than they were...than they already were”[40] and “we’re all big, one angry family”.[41] Ms Matthews’ daughter indicated that things had been alright at home until they moved into their new house and that after that, things got bad. She explained:
“A couple of weeks after we moved in. Because when we moved in everything wasn’t so um bad and the twins were actually coming out and people were coming over but ever since Mum got her computer she hasn’t been really um letting most people over because some of the people we are related to Mum doesn’t really like. And then when we got settled into the house um Mum started getting angrier than usual and because in the old house we were fine then everything was clean and we were fine.”[42]
[40] Transcript of Recording between D/Sgt M Bond, D/Sgt A Aquilina and Ms Matthews’ eldest daughter dated 21 June 2008 (Tape 2 of 2) at 6.
[41] Ibid 17.
[42] Above n 38, 8.
She also confirmed that her mother had been feeding the twins only formula recently and she outlined how she had found the twins deceased when her mother went out to buy food.
In his interview, Ms Matthews’ son who was aged eight at the time, essentially confirmed the information provided by his sister. He also said that “my mum and dad hate each other… yeah they hate each other cause my mum hates my dad cause he’s an alcoholic while my dad hates my mum cause she’s not nice… like she yells all the time… she yells at dad because she wants him to stop drinking.”[43]
[43] Transcript of Recording between D/Sgt Aquilina, D/Sgt Bond and Ms Matthews’ son dated 21 June 2008 (Tape 1 of 1) at 37.
The medical centre files
Dr Wong’s statement regarding the records of the practice indicated that the twins were attending at the practice and receiving their immunisations and check ups until August 2007. On 17 August 2007 one twin weighed 7.8 kilograms and the other weighed 8.09 kilograms.
Dr Wong indicated also that Kyle Matthews had received treatment at the practice and he had treated her briefly for depression in 2002. He had written two scripts for Aropax in March 2002 but she had not received further psychiatric treatment as the records of 26 September 2002 indicated that “Aropax 20mg ceased”. Dr Wong stated that he did not refer her or any of the children to any specialists for any treatment.
The 26 May 2008 house inspection
Ms Lee-Bennett, is one of the owners of the house that the family had rented at Sunnybank Hills since late 2007. In her statement to police she indicated that she had organised an inspection of the house for 26 May 2008. Ms Matthews informed her that she was sick and Ms Bennett said that Kyle looked flustered and nervous. In fact she thought she looked terrible.
“She looked like a street person, she had on these old black track suit pants with no elastic, her underwear were showing and the top was grey and stained. She had no shoes on, she looked like she had just got out of bed. Her hair was messy, she just looked terrible.”[44]
[44] Statement of K J W Lee-Bennett dated 17 June 2008 at 42.
When they went inside the house Ms Lee-Bennett could hear the twins screaming. Ms Lee-Bennett told her to go and look after the twins. Kyle replied that they were all right and went into the house with her. Ms Lee-Bennett stated the house was in a mess. The kitchen had plates with half eaten food on them and dishes in the sink. The stove was dirty. The floor was wet and sticky. There was a double mattress on the floor in the lounge room with no sheets on it.
Ms Lee-Bennet stated that she could hear the twins crying from the bedroom and asked to go in. She was refused access to the bedroom and was told the twins were in there and when she asked Ms Matthews “Do you want to go in” she said again “No they are all right.”[45] Ms Bennett said:
“To me the children sounded exhausted from crying, by this stage they weren’t screaming anymore, they were just sobbing. I thought she should have checked on them, but she didn’t seem concerned. We went down to the next room on the right, which had the bunk beds still, which were still unmade and clothes everywhere.”[46]
[45] Ibid 50-51.
[46] Ibid 52.
Susan Matthews’ Statement
Susan Matthews, Ms Matthews’ biological mother, also gave evidence that previously she was helping Kyle with the children and would go over regularly and often spend the night until around February 2008. By February 2008 she stated that Kyle was spending more and more time on the computer. She also indicated that Kyle started to stop her from going into the twins’ room. Often when she was at Kyle’s she would hear the twins crying and go to walk into their room to check them but “Kylie (sic) would stop me from entering the room telling me that she would look after them.”[47]
[47] Statement of S C Matthews dated 17 June 2008 at 40.
Susan Matthews stated that the last time she insisted on seeing the twins was around March or April 2008. She said at that stage one of the twins looked fine but the other was not looking well and he appeared very drawn and was very clingy. Kyle told her that she was “taking him to the doctors tomorrow” because “he was eating and drinking but was losing weight”.[48] Ms Matthews stated that the following day she phoned to see how her grandson was and was told:
“The doctor said that [the twin daughter] was fine. But he was concerned about [the twin son] because he was loosing (sic) weight and not growing. The doctor has put him on a special formula and if he didn’t put on weight he would send him to a paediatrician at the Mater Hospital.”[49]
[48] Ibid 44.
[49] Ibid 46.
Susan Matthews also stated that Kyle told her something about putting her twin son on hormones or steroids to help him grow. She stated that every time she went to the house she was told that the twins were sleeping or had just gone down for a sleep.
Dr Hannah’s Initial Assessment
After her arrest on 16 June 2008 Ms Matthews was seen within days by a psychiatrist, Dr Dominique Hannah, in the Prison Mental Health Service. Dr Hannah has provided a report based on her initial assessments of Ms Matthews and gave evidence to the court at the hearing of the reference. I will at this point set out Dr Hannah’s initial assessment of Ms Matthews as it is a relatively contemporaneous account of her presentation but will defer a discussion of Dr Hannah’s opinion until later in these reasons when I refer to all the psychiatric reports.
Dr Hannah first saw Ms Matthews at the Brisbane Women’s Correctional Centre on 20 June 2008 and made a recommendation for assessment. Ms Matthews was subsequently admitted to The Park High Secure Inpatient Service on 9 July 2008.
Dr Hannah stated that when she saw Kyle first, four days after her arrest, she considered Kyle had been in a psychomotor retarded state for a period of some weeks and that was based on her body posture, decrease in body movement, her poorly kept hair and her general complexion. She stated that her mood was basically depressed. Her speech was consistent with someone who had been in a socially withdrawn state for a long period of time and then had had concentrated social stimulus over a few days. She stated that at times she became overwhelmed by grief and was crying. She stated she had significant difficulty recalling the timing of events in the previous six months and her thought content related to hopelessness and feeling overwhelmed. She indicated however there was nothing delusional.
Dr Hannah indicated that at the time of her initial assessment Ms Matthews described feeling increasingly depressed, hopeless and overwhelmed. She described being aware of tasks needing to be completed but having no motivation to complete them. She was sleeping through the day and sitting up at night. She had lost interest in everything, had poor appetite and poor self-care and had stopped showering or washing her hair. Kyle stated that all she could remember was either “yelling, crying or sleeping” and that she felt she was “in a black hole.”[50] She could not recall feeling pleasure in anything, and stated “my world was upside down, the kids were rioting, Mark wasn’t listening, I wasn’t happy with my self (sic).”[51] She stated nothing seemed like reality. She had considered suicide but whenever she made plans she would become conflicted about leaving the children.
[50] Report of Dr D Hannah dated 12 March 2012 at 10.
[51] Ibid.
Dr Hannah indicated that Ms Matthews initially had difficulty trying to remember the six months prior to the death of the children but she indicated that she had not felt right in herself since the twins were born and had noticed a significant deterioration in her mood and function over the six months prior to her arrest. Ms Matthews told her that the twins had been unplanned and she had previously had an IUD inserted. The twins were also delivered by emergency caesarean due to pre-eclampsia and were six weeks early. She confirmed that whilst her partner had been involved with the care of the children, he had become disengaged around Christmas 2007 and the relationship had deteriorated.
Dr Hannah indicated that whilst Ms Matthews had described hearing the twins crying in the days after they had died. There were no other psychotic features. She informed Dr Hannah that she had had depression following the birth of her first child and her fourth child and that after the birth of her first child she was treated with the antidepressant Arapax for three months but that her symptoms resolved.
This Reference
The question of Ms Matthews’ mental condition at the time the alleged offences occurred has been referred to this Court for determination pursuant to s 267 of the Mental Health Act 2000 (Qld) (“the Act”):
“267 Mental Health Court to decide unsoundness of mind and
diminished responsibility(1)On the hearing of the reference, the Mental Health Court must—
(a) decide whether the person the subject of the reference was of unsound mind when the alleged offence was committed; and
(b) if the person is alleged to have committed the offence of murder and the court decides the person was not of unsound mind when the alleged offence was committed—decide whether the person was of diminished responsibility when the alleged offence was committed.”
The definition of unsound mind is contained in the Schedule of the Act as follows:
“unsound mind means the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.”
Section 27 of the Criminal Code Act 1899 (Qld) (“the Criminal Code”) is in the following terms:
“27 Insanity
(1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.”
Accordingly, the questions for this Court to determine are:
(i) Was Ms Matthews suffering from a mental disease?
(ii) Was Ms Matthews of unsound mind at the time the alleged offences were committed?
(iii) If Ms Matthews was not of unsound mind was she of diminished responsibility when the alleged offences of murder were committed?
Was Ms Matthews suffering from a mental disease at the time the alleged offences were committed?
There are reports from five reporting psychiatrists. I also have the advice of the two assisting psychiatrists, Dr McVie and Professor Lawrence. All the psychiatrists consider that Ms Matthews was suffering from a mental disease at the time of the commission of the alleged offences because, by at least June 2008, she was in a state of a severe, or at least a moderately severe, major depressive episode.
Many of the psychiatrists consider that Ms Matthews also has a diagnosis of borderline personality disorder. Dr McVie’s advice was that most of the reporters considered that a borderline personality structure was present, either borderline personality disorder or borderline features possibly as a function of the deterioration in mental state which often brings out underlying personality traits.
Dr Hannah, however, considered that there was no evidence of borderline personality disorder. Dr Fama did not support such a diagnosis, but Dr Voita considered that this was the primary diagnosis and Dr van de Hoef essentially agreed with that view. I note that Dr Voita made this decision after observing Ms Matthews in hospital for two months, which is perhaps the most intensive observation of Kyle Matthews amongst all of the assessments.
In any event, it is clear that all psychiatrists consider that, at the very least, Ms Matthews was suffering from a mental disease at the time due to her major depressive episode.
I am accordingly satisfied that at the time of all of the alleged offences Ms Matthews was suffering from a mental disease.
The next issue is to determine whether that mental illness was of such intensity that Ms Matthews was of unsound mind at the time of the alleged offences and therefore not criminally responsible for her actions.
Was Ms Matthews of unsound mind at the time the alleged offences were committed?
In order for there to be a finding of unsoundness of mind in relation to any of the offences charged, I must be satisfied that Ms Matthews was totally deprived of one of the relevant capacities, namely the capacity to understand what she was doing, the capacity to control her actions, or the capacity to know that she ought not to do the act or make the omission.
None of the psychiatrists support a finding that Ms Matthews was totally deprived of any of the relevant capacities at the time.
I am therefore satisfied that there is no evidence before me to support a finding of unsoundness of mind in relation to Counts 1, 2, 3 and 4 on the indictment – Counts 1 and 2 being charges of failing to supply the necessaries of life to the twins and Counts 3 and 4 being charges of murder of the twins.
Despite a finding that Ms Matthews was not of unsound mind at the time of the commission of any of the alleged offences, s 304A of the Criminal Code provides that, in relation to an unlawful killing, it is necessary to determine whether Ms Matthews was of diminished responsibility at the time the alleged offences were committed. A finding of diminished responsibility is of course not available in relation to the charges against Ms Matthews other than murder, namely Counts 1 and 2.
Was Ms Matthews of diminished responsibility at the time of the commission of alleged offences of murder, being Counts 3 and 4 on the indictment?
Diminished responsibility is defined in the Schedule of the Act as follows:
“diminished responsibility means the state of abnormality of mind described in the Criminal Code, section 304A.”
Section 304A of the Criminal Code provides as follows:
“304A Diminished responsibility
(1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only.”
Accordingly, in order for there to be a finding of diminished responsibility so as to reduce the charge to one of manslaughter only, I need to be satisfied that Ms Matthews had a substantial impairment of one of the relevant capacities as opposed to a finding of total deprivation of one of the capacities which is the requirement for a finding of insanity.
In this regard there is a difference of opinion amongst the reporting psychiatrists and the assisting psychiatrists. Drs Hannah, Sundin and Fama all support a defence of diminished responsibility. Dr Lawrence endorses that approach.
Dr Voita does not support a defence of diminished responsibility and that approach is supported by Dr McVie. Dr van de Hoef initially considered that Ms Matthews was not substantially impaired but subsequently clarified her initial view to the extent that she now concedes that it is ‘debatable’ that Ms Matthews’ ability to reason was substantially impaired and she is prepared to “concede that possibility.”[52]
[52] Transcript of Proceedings 1-37.
Given the significant differences of opinion as between the psychiatrists, including the assisting psychiatrists, I propose to examine these reports and that advice in some detail.
Dr Hannah’s Report
Dr Hannah considered that Ms Matthews’ judgment was substantially impaired by her pervasive mood disturbance and that she was suffering from a major depressive episode which had commenced post-natally but had shown significant deterioration in the previous six months. That diagnosis was based on the presence of prominent psychomotor retardation and lack of motivation associated with depressed hopeless cognitions and intermittent suicidal ideation. Dr Hannah considered Ms Matthews’ insight was only partial in that she was aware something was wrong with her thinking but had not fully attributed it to an illness. Dr Hannah also considered that there had been significant social withdrawal.
Dr Hannah indicated that by April 2008 Ms Matthews was aware the twins were losing weight but was unable to respond to this awareness. She was only responding to their needs on an immediate basis, giving them a bottle if they cried. She considers that sometime in June she stopped responding and it appears that a few days passed before she realised she had not heard them cry. Dr Hannah considered that as the illness progressed she became psychomotor retarded with associated cognitive slowing (that is, she was able to think about what to do but not able to initiate the action, slowing of sense of time) and began to fall behind on household tasks. She stated she became overwhelmed by both what she needed to do and her decreasing capacity to perform tasks.
Dr Hannah considered that she was at her least functional when alone at home with the twins and the three year old as the external stimulation provided by the older children would have helped her become more activated and able to function. As she became more depressed and decreased her interactions with the twins they became less responsive and withdrawn and then less able to provide the external stimulation that Ms Matthews was relying on to meet their needs, which was why their neglect was so much worse than that of the other children.
Dr Hannah also considered that her ability to recognise how unwell she had become and to realise the potential consequences of continuing to underfeed the twins was impaired by her dependency on her partner, Mark. She tried to convey to him that she was not coping, but he would dismiss what she was saying. This lack of reality testing contributed to her belief that she would be able to pull herself out of the state and start functioning again. Whilst she stopped doing most tasks, she was able to continue on the internet and Dr Hannah considered that this was because she was distracted by the internet and, unless distracted, she was overwhelmed by distress at the enormity of her situation.
Dr Hannah did not consider that Ms Matthews exhibited the pattern of behaviours consistent with a diagnosis of borderline personality disorder. She did not consider there was a pervasive pattern of instability of interpersonal relationships, self image and effect, or marked impulsivity. In terms of unsoundness of mind Dr Hannah considered she was suffering from a major depressive disorder, moderate to severe without psychotic features.
Whilst she did not consider that the illness was severe enough to deprive her of any of the capacities, Dr Hannah considered the illness was such that it caused a substantial impairment of her capacity to understand that she ought to do the act. That is, she knew that she ought to provide nutrition for the twins but was impaired in her capacity to understand that continuing not to provide adequate nutrition would at some stage result in their deaths. Secondly, she considered Kyle lacked the volition to control her actions. Dr Hannah supported a defence of diminished responsibility.
Dr Fama’s Report
Dr Fama interviewed Ms Matthews seven months after her arrest. Dr Fama concluded that whilst Kyle was suffering from a mental disease he did not believe that the disease was sufficient to deprive her of capacity. He considered that she understood what she was doing and that there was no history to suggest deprivation of control. In relation to knowing that she ought not make the omission to feed the children he considered that Ms Matthews had told police that in the end she knew it was not right, rather she knew it was wrong.
Dr Fama, however, considered that under s 304A of the Criminal Code, he would support a defence of diminished responsibility on the charges of murder (Counts 3 and 4). He considered that that defence was based on her depressive illness constituting an abnormality of mind derived from disease. He considered it substantially impaired her capacity to control her actions and to know she ought not to make the omission. He considered she was too burdened with personal dejection and feelings of inadequacy at a morbid level to have the initiative to care properly for her twins. In that respect he considered that she had a marked reduced control over her actions.
He also considered that her abnormality of mind greatly impeded her moral judgment and that prevented her from the full realisation that what she was doing by neglecting the children’s care and nutrition constituted a wrongful act. He considered that in her distorted thinking she had come to live with a restitutive fantasy that all would work out well in the end. He continued:
“She had some realisation that the twins were deteriorating in their health, that they were going downhill, they were getting thin and weak, but she, at the same time, had what I have described as a rectitude of fantasy and what others have described as magical thinking that somehow they would pull through, everything would be all right, life would change, and she just had to wait until that time came … This thinking really bordered upon psychotic. It was very close to insanity …”[53]
[53] Ibid 62.
Dr van de Hoef’s Report
Dr van de Hoef considered that Ms Matthews clearly suffered from a major depressive episode which was severe in the three to four months before the alleged offences. She thought the disease arose gradually in the context of moving house, the burden of care of six young children, increasing absenteeism of her de facto husband from the home and his increasing interest in gambling and drinking. She also noted the resultant financial hardship and increased burden of child care on her as well as the breakdown of intimacy. Dr van de Hoef considered that the depressive episode was moderately severe and that it impaired her functioning. She considered her self care deteriorated seriously as did her care of the children and the home. Dr van de Hoef stated that there is no evidence supporting psychotic symptoms or motivation for neglecting, or starving, or harming, or killing the twins.
Dr van de Hoef indicated that Ms Matthews’ accounts have consistently failed to indicate any violent acute event that killed the children. She considered however that Ms Matthews had failed to satisfactorily explain how two previously healthy children came to be locked away, ignored and starved slowly, while their father lived in the same house but did not look after them for months. Dr van de Hoef also considered that it has not been explained how numerous people unsuccessfully tried to see the twins but were effectively blocked by Ms Matthews. Dr van de Hoef considered Ms Matthews has a borderline personality disorder with marked lifelong affective instability.
At the time Dr van de Hoef saw Ms Matthews, some six months after the offences, she considered that she had improved considerably and did not meet the criteria for an involuntary treatment order and did not require hospitalisation. Dr van de Hoef also noted that at the time of the alleged offences none of the family was so alarmed by Ms Matthews’ appearance and behaviour as to force the issue of seeing the twins. She stated that no one considered the twins were in such danger. Dr van de Hoef considered that by April 2008 the children were in dire straits. The condition of the twins by that stage would have prompted any general practitioner or health professional to activate child safety mandatory reporting, which would have led to the monitoring and dissembling of the household.
Dr van de Hoef considered that fear of the discovery of the neglect of the twins led Ms Matthews to keep them behind a closed door for much of the next three months, giving them less and less attention and sustenance. She appeared to be able to suspend belief and the evidence of her own eyes of the twins’ increasingly desperate plight in favour of shielding herself from the stress of taking care of them or revealing her chronic neglect of them. She appeared to retreat into the internet and away from anyone who might have helped. Whilst Dr van de Hoef considered her mental state impaired her capacity to know she ought not do the acts and probably impaired her capacity to control her actions, she was not initially persuaded that Ms Matthews had:
“any substantial impairment of the capacity to know the nature of the act(s); in fact, there are indications she knew the twins were ‘bad’, and acted repeatedly to shield their emaciation from the view of the world (and its censure and consequences). There is some evidence that she lied to hide their condition (but ultimately failed to hide it from the other children). I think her mental disease is insufficient to explain the death of these children. I am not persuaded that it fully deprived her of any of the relevant capacities, so cannot support a finding of unsoundness of mind.”[54]
[54] Report of Dr P van der Hoef dated 16 January 2009 at 15.
In relation to whether she suffered from an abnormality of the mind that impaired her capacity, Dr van de Hoef considered that although many aspects of her mental state and functioning at the time were clearly significantly impaired, she was not persuaded during cross-examination that the illness “substantially impaired any of the relevant capacities with respect to the charges” and did not therefore support a finding of diminished responsibility with respect to the charge of murder. Dr van de Hoef stated
“I came to the conclusion that the depression was certainly part of that impairment of thinking, but also it was partly her personality structure directing her reaction to what looked to be the imminent loss of the major relationship in her life.” [55]
[55] Above n 52, 36.
Dr van de Hoef also considered that Ms Matthews herself had a level of awareness that she was not functioning very well. She stated that she did not consider that she was so apathetic that she was unable to function and considered “She had enough nous, enough energy to actively repel people who did want to help her”.[56] Dr van de Hoef also noted her attempts to clean up the house and take out the garbage subsequent to the death of the twins. In particular, she did not consider that Ms Matthews was psychomotor retarded when interviewed by police after her arrest.
[56] Ibid 35.
Dr Lawrence asked Dr van de Hoef to consider the possibility of ‘magical thinking’ and Dr van de Hoef conceded that possibility as follows:
“I would concede that possibility. I think magical thinking is a better description, actually, than what I have been struggling with, it was denial as a psychological defence mechanism. I mean, even [her eight year old son] knew at an instant that they were dead. He knew. [Her daughter] knew at 11. And for the mother to go in and try and shake a dead baby away, absolutely magical thinking is probably exactly what was operating then. And not only in respect of that, but maybe she had magical thinking about how much nutrition they were actually getting, magical thinking about whether they would all be able to be resuscitated once the relationship improved and it never did. There was probably magical thinking operating on many levels in that lady's life in the months that led up to the twins' death, yes.
Dr Lawrence -- Her ability to think that her reason was substantially impaired?-- Yes, I think it might have been, yes. I think it is certainly debatable and I would concede that possibility.” [57]
[57] Ibid 37.
Dr Sundin’s Report
Dr Sundin prepared a report dated 23 October 2008. Dr Sundin first saw Ms Matthews in July 2008, which is about three weeks after the commission of the alleged offences. Dr Sundin considered that she would make a DSM-IV diagnosis of major depressive episode, moderate to severe intensity, recurrent, without psychotic features occurring in the context of a woman with borderline personality disorder.
Dr Sundin noted that by the time of her review in October 2008 Ms Matthews’ mood had substantially improved in response to treatment and there had been a significant resolution of the neurovegetative disturbance. Dr Sundin confirmed that she was not satisfied that Ms Matthews was suffering from sufficient mental disease as to absolutely deprive her of any of the capacities and she did not support a defence of unsoundness of mind.
Dr Sundin, however, considered that the impact of Ms Matthews’ major depressive disorder was such that it did cause substantial impairment to her capacity to understand the repercussions of what she was doing and, by virtue of impairing her volition, to thus impair her capacity to control her actions. Dr Sundin stated that she would support a defence of diminished responsibility. She noted that Ms Matthews’ mood had been depressed for many months and her sleep had been significantly disturbed. She appeared to have a sleep reversal and she was frequently asleep during the day and then awake at night, often online on the computer or awake worrying about the deteriorating family situation.
Dr Sundin described her appetite as poor and that her energy levels were extremely low. She was also socially withdrawn and actively avoided contact with others. She noted that she rarely left the house and had recurrent suicidal ideation and fantasies of being dead to escape her unhappy life. She also noted that Ms Matthews was overwhelmed by domestic duties and not attending to household chores. Dr Sundin noted that Ms Matthews had great difficulty in remembering the period between February and June 2008, describing it as a blur.
Dr Sundin stated that when she interviewed Ms Matthews she looked bewildered, saddened and profoundly distressed. Her mood was depressed and guilt-laden. She stated that her thinking was predominated by suicidal and nihilistic cognitions. Dr Sundin noted a history of at least two and possibly three episodes of depression in the past in the postpartum period. She also noted the substantial deterioration in her relationship with her partner. Dr Sundin considered that she had a major depression of moderate to severe intensity that was characterised by depressed mood, impaired appetite, disturbed sleep patterns, impaired concentration and memory, social withdrawal, and escape into a fantasy world of a computer avatar and other dreams of escape. She expressed feelings of being overwhelmed and not coping in the care of her twins.
Dr Sundin considered that Ms Matthews was increasingly relying on her older children to fend for themselves and had less energy and had impaired volition for care of the rest of the family. Dr Sundin noted that whilst Ms Matthews did not describe any specific psychotic symptoms motivating, with regard to her neglect of her children, in general or the twins in particular, she did describe a vague awareness of the need to feed the twins combined with an impairment of the capacity to energise herself to do so.
Dr Sundin considered she was a woman who was “flat, listless, withdrawn and overwhelmed”.[58] She also considered that her behaviour in hiding the twins’ death for a week suggests a woman who had gone into deep shock and disbelief: “Certainly, she appears to have struggled to have an appreciation of what had happened as reflected in her statements that she repeatedly went in to check them in the hope that they had woken up.”[59]
[58] Report of Dr J Sundin dated 23 October 2008 at 37.
[59] Ibid.
Dr Voita’s report
Dr Voita’s report is dated 2 September 2008. Dr Voita noted that she had been Ms Matthews’ treating psychiatrist since her admission to The Park and that she had seen Ms Matthews on at least 20 occasions by September 2008.
Dr Voita considers Ms Matthews’ primary diagnosis is that of a borderline personality disorder. She also considers that she was suffering from a major depressive episode of moderate severity at the time of her arrest. Dr Voita stated that in her view the depression further deteriorated after she found the twins deceased and after her arrest.
Dr Voita indicated that prior to finding the twins deceased, in spite of her depression, she was still able to care for the other four children, spend time on the internet and had ongoing contact with her foster mother and her biological mother. They both corroborated marital disharmony and a lack of involvement in the care of the children by her partner:
“In spite of the tragedy that subsequently unfolded my opinion, at the material times, I do not believe Ms Matthews would have been experiencing such a state of mental disease or natural mental infirmity as to deprive her of the capacity to understand what she was doing, or of the capacity to control her actions, or of the capacity to know that she ought not do the act or make the omission as defined under Section 27 of the Criminal Code. I am of the opinion that the neglect of the children was as a consequence of primitive psychological defences such as denial due to a severe personality disorder. I am of the view that the offences were not psychotically driven and that she was aware of the nature of her actions and the possible consequences if she did not care for the children. It is clear that she was aware as early as March 2008 that the children's health was deteriorating but chose not to seek medical help for fear of losing custody of them and the other children. It appears that as time passed and she witnessed their health decline, she kept them out of sight by ‘closing the door’. She herself can identify that she was in ‘denial’. This unfortunate tragedy unfolded in a setting whereby a number of responsible adults were disengaged from caring for the twins and did not take responsibility for their care.
In my view it is significant that no one was obviously worried about Ms Matthews. Whilst Ms Lee-Bennett thought that Ms Matthews looked terrible, she did not make any reference to her mental state at that time and neither did anyone else.
Ms Matthews’ eldest daughter had a very close relationship with Judith Holland and told police:
“well usually I tell Nan almost everything about the family what’s happening about the twins she gets mad mum gets mad because I’m not really sure why cause its not really a big problem when I tell Nan she just thinks that I like Nan more than her”.[65]
At no stage, however, did Ms Matthews’ daughter ask Judith to check up on her mother or say she was worried about her mother. The only complaint about her mother was a complaint to Judith Holland that she was spending a lot of time on the computer. Ms Matthews’ daughter raised concerns with Judith Holland about the twins but not about her mother. Ms Matthews’ daughter subsequently told police that she thought her mother was depressed and though depressed meant “like bad like all these bad feelings like angry upset and stuff like that”.[66]
[65] Ibid at 14.
[66] Transcript of Recording between D/Sgt M Bond, D/Sgt A Aquilina and Ms Matthews’ eldest daughter dated 21 June 2008 (Tape 1 of 2) at p19.
Neither is there any evidence that the daughter raised any concern with her father about her mother’s functioning, despite the fact she had criticised him and told him off for going out playing poker too much. Ms Matthews’ daughter also gave clear evidence of her mother being ‘angry’ and ‘mad’ with all of them all the time. She said in her interview “Well at the old house she wasn’t, she wasn’t so cranky. She was actually happier. When we moved in here, I noticed that she got really mad over small things.”[67] Later in the interview she explained:
“Well, the, we tried to talk to her, instead of saying yes she’d yell out and go WHAT. Um um and if the boys did something ah like really, well they were always bad so it was hard to actually talk to Mum because she was always mad at them and yeah.”[68]
[67] Above n 38, 9.
[68] Ibid.
In her interview, Ms Matthews’ daughter explained that Children’s Services had been involved with the family in the ‘old house’ due to a “rumour that my mum, that mum was belt us for no reason”.[69] The daughter told police that she told Children’s Services “I said well yeah when we’re bad but not very hard”.[70]
[69] Ibid 35.
[70] Ibid.
Despite the fact that they kept in contact with her, neither of Ms Matthews’ mothers, knowing that she was caring for infant twins, was overly concerned about her. Furthermore, when concerns were raised about the twins Ms Matthews was able to not only actively rebut those concerns but was able to do so in a way so as not to raise any suspicion about her own level of functioning. On the material before me it would seem that Ms Matthews in fact told Susan Matthews she had taken the twins to the doctors and gave a plausible explanation as to why one of twins was not thriving when the evidence of the medical centre indicates the children did not attend after August 2007.
The friend who visited in the week of the twins’ deaths did not note anything unusual about her presentation. Mark Jackman was still living in the house and was interacting, to an extent, with the older children as he was driving them to and from school. He was not apparently concerned.
There is also clear evidence that Ms Matthews was in fact caring for the other children at least to some extent, which included cooking for them several days a week and otherwise buying them takeaways. Ms Matthews’ eldest daughter indicated that “Normally mum would cook”.[71] She was using the internet extensively and on the day the twins’ bodies were discovered she had done some internet banking. There is also evidence that she physically went shopping that afternoon down the road to the shops and bought things for the children including chicken and lollies.
[71] Ibid 33.
I essentially agree with Dr van de Hoef’s assessment that she was not so apathetic that she was unable to function and, indeed, she had enough energy “to actively repel people who did want to help [her]”.[72] I also note that whilst Ms Matthews’ eldest daughter wanted to ‘mother’ the twins she was prevented from doing so by Ms Matthews. The daughter indicated that “because she was upset but I couldn’t go into the room with out her more upset or angry and so I usually mum sometimes would drop dad off to poker that’s when I’d usually go into their room and talk and play with them”.[73]
[72] Above n 52, 35.
[73] Above n 65, 8.
One of Ms Matthews’ sons also confirmed that his mother didn’t like any of them going into the room and that he would have to “sneak” in. He stated “[i]f one of us gone into the room when mum knows she’ll umm we’ll get in trouble… umm cause mum doesn’t like us going into the room”[74] and:
“umm she like never lets us in the room… like she we are only aloud (sic) to go in the room like when we sneak in there... we sneak in the room because umm we don’t want to get caught if we get caught mum will just tell us to get out”.[75]
[74] Above n 43, 21.
[75] Ibid 35.
Dr van de Hoef also referred to Ms Matthews’ attempts to clean up the house and take out the garbage before police arrived. I also note that Ms Matthews’ eldest daughter describes those efforts in some detail in her interview.
Furthermore, given the significant difference of opinion as between the psychiatrists, I cannot be satisfied that Ms Matthews was indeed psychomotor retarded at the time of her arrest. Many of the psychiatrists who saw the video of her interview on arrest do not consider that she was impaired to that extent. Even if Ms Matthews was indeed psychomotor retarded at the time of her arrest this may have been significantly exacerbated by the discovery, a week earlier of the twins bodies and the knowledge that they were in fact dead.
Furthermore whilst Ms Matthews was hospitalised soon after her arrest, she recovered quickly and was discharged after two months and was returned to custody. She was discharged on Citalopram 20 mg and has not required extensive follow up treatment.
I consider that there is a substantial body of opinion that personality factors were also involved in Ms Matthews’ actions. In this regard I am particularly persuaded by Dr Voita who initially had the most contact with Ms Matthews and her view that Ms Matthews’ primary diagnosis is that of borderline personality disorder.
On the current evidence, whilst I am satisfied that there was indeed some impairment of Ms Matthews’ capacity of control which was not minor I am not satisfied that Ms Matthews’ capacity to control her actions was at the level that I can be satisfied that her capacity was substantially impaired solely due to factors related to her abnormality of the mind.
Was Ms Matthews’ capacity to know she ought not do the act or make the omissions, which led to the deaths of her twins, substantially impaired?
Counsel for Ms Matthews also argued that Ms Matthews was substantially impaired in her capacity to reason. Counsel argued that the extent to which Ms Matthews was able to think through the consequences of her inadequate feeding of the twins was intensely relevant to the question whether she had a substantial impairment of her capacity to know that she ought not do the act or make the omission.
In this regard, Dr Hannah gave the following opinion:
“ I think she realised that the twins were gradually deteriorating, but I’m not sure that she was holding in her mind that they could potentially die … I think again, it was that not being able to see the potential outcome and keeping it very much to the right now they’re alive but they’re getting thinner, as long as I keep giving them bottles I’ll get them through today … and then I’ll sort this out, I’ll do something different tomorrow … So that sense of putting off the change … and part of what happens in – in a severe depression, particularly when a person gets isolated as she is, is that their timeframe gets affected as well, so the sense of days passing and how many days have passed becomes affected, which was quite apparent in the history both when I first saw her and in the police transcripts … I think that also affected her capacity to think if I don’t feed the children within the next week or two, you know, they’re going to get sick or to die …[76]
[76] Above n 62, 60.
Dr Sundin also considered that the impact of Ms Matthews’ major depressive disorder was such that it did cause substantial impairment to her capacity to understand the repercussions of what she was doing. Dr Fama also considered her depression substantially impaired her capacity to know she ought not to make the omission.
The well known test in relation to this capacity was set out by Dixon J in The King v Porter:
“You are dealing with a very different thing – the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder.
Then I have used the expression ‘know’, ‘knew that what he was doing was wrong’. We are dealing with one particular thing, the act of killing, the act of killing at a particular time, a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people might make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.” [77]
[77] (1933) 55 CLR 182 at 189-190.
In terms of Ms Matthews’ capacity to reason and to understand the consequences of her actions, I consider that Ms Matthews’ responses in the two police interviews, which I have set out in some detail in these reasons, indicate that there is considerable evidence that she knew and understood that she was not feeding the twins enough and she knew at least at a theoretical level what the consequences would be. I consider her statements soon after her arrest indicate that she knew that she ought to provide nutrition for the twins and knew immediately on her arrest that the death of the twins had been the result of her neglect. Ms Matthews specifically told police “I knew deep down that they needed to go, you know, they needed to get help.”[78] Furthermore, she stated that she realised the children’s weight loss was a problem at least by the time of her birthday in April.
[78]Above n 11, 11.
Ms Matthews knew that the twins were getting smaller. She described that to police. I am not satisfied that Ms Matthews did not appreciate at some level that there could be serious repercussions to the twins as a result of not being fed. She had raised four other relatively healthy children and she was continuing to feed them and herself. In this regard it is significant that after they began to lose weight she would not let anyone see them. She knew that if anyone saw the twins in their neglected state it would lead to alarm about their health which could possibly lead to their removal. Her eldest daughter told police that after she told her grandmother she was worried about the twins her mother reprimanded her and told her she should not be talking about them to anyone. She said “and when I got um when I came home she told me I shouldn’t be telling people much cos um we might be taken away from her.”
Accordingly I am not satisfied on the balance of probabilities that Ms Matthews was “incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act.”[79] It is clear that the offences were not psychotically driven. In my view she was aware as early as March 2008 and certainly by April 2008 that the twins’ health was deteriorating but chose not to seek medical help for fear of losing custody of them and the other children. I agree with Dr Voita that as time passed and she witnessed their health decline she kept them out of sight by ‘closing the door’, but I am not satisfied that she did not appreciate what the inevitable consequence could be. She also clearly knew it was wrong not to care for them adequately which is why she hid them from sight and prevented access to them.
[79]Stapleton v R (1952) 86 CLR 358 at 367 per Dixon CJ, Webb and Kitto JJ.
I am not therefore satisfied that Ms Matthew’s capacity to see the wrongness of her actions or appreciate the consequences of her actions was substantially impaired. I am satisfied that Ms Matthew’ capacity was indeed impaired but in my view it was not at that point on the continuum that I can be satisfied that it was “substantial”. I am satisfied however that it was not minor.
Accordingly, the defendant was not of diminished responsibility as described in s 304A in relation to the offences of murder.
I note that Counsel for the Director of Public Prosecutions indicated that, on the evidence, there may be significant difficulties for the Crown in establishing the relevant intention to kill or cause grievous bodily harm in relation to the charges of murder. I agree that there may be some significant issues in that respect on the current state of the evidence.
That question as to Ms Matthew’s intention however is not the question before this Court. The question before this Court relates to an interrelated but distinct question of Ms Matthews’ mental functioning at the time of the alleged offences and the determination of the question as to whether her mental illness was such that it substantially impaired one of the relevant capacities. In this regard I note that there is a finding that Ms Matthews had impaired functioning in relation to at least two of her relevant capacities. The question as to what Ms Matthew’s actual intention was at the time is however distinct from the question as to whether she had the capacity to control her actions or the capacity to know that she ought not do the act or make the omissions.
I am also satisfied that a s 268 issue does not arise because any doubt which arises as to whether Ms Matthews committed the alleged offence exists only as a consequence of Ms Matthews’ mental condition.
I am satisfied that the evidence clearly indicates that the defendant is fit for trial.
The charges should therefore continue according to law.
ORDERS
That at the time of the alleged offences the defendant was not of unsound mind.1.
That at the time of the alleged offences of murder the defendant was not of diminished responsibility.2.
The defendant is fit for trial.3.
The proceedings against the defendant are to continue according to law.4.
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