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District Court 14 March 2013

R v CJ

[2013] NSWDC 40

Sexual offences
JUDGE ALONE TRIAL MENTAL ILLNESS FACTS NOT DISPUTED ISSUE OF BIPOLAR DISORDER ISSUE OF WRONGNESS COMPETING PSYCHIATRIC OPINIONS

Citation: R v CJ [2013] NSWDC 40
Court: District Court of New South Wales
Date: 14 March 2013
Judge(s): Judge Williams

Background

The accused, a female boarding school employee, admitted the ingredients of 21 sexual offences committed against six boys aged 11 to 12 during the first half of 2009. The offending encompassed acts including fellatio and penile-vaginal intercourse, occurred over approximately five months, and only came to light after one of the students made a disclosure to a school director. This was a retrial following a successful conviction appeal to the Court of Criminal Appeal.

The sole defence raised was not guilty by reason of mental illness under the Mental Health (Forensic Provisions) Act. The accused did not contest that the offences occurred. The entire contest at trial concerned her mental state at the time of the offending.

The trial proceeded before a judge sitting alone. Competing psychiatric evidence was central: Drs Nielssen and Richardson diagnosed bipolar disorder (specifically Bipolar I Disorder), while Professor Greenberg concluded the accused did not suffer from any recognised mental illness at the relevant time.

Legal Issues

  • Whether the accused was suffering from a mental illness, specifically Bipolar I Disorder, at the time of the offences
  • Whether, if mentally ill, the accused was labouring under a defect of reason caused by a disease of the mind within the meaning of the M'Naghten Rules
  • Whether the accused could not reason with a moderate degree of calmness about the moral quality of her acts and was thereby prevented from knowing that what she was doing was wrong
  • What weight to give competing psychiatric opinions, and the appropriate role of the DSM IV in that assessment

Decision

Issue 1: Existence of mental illness

The court found, on the balance of probabilities, that the accused was suffering from Bipolar I Disorder at the time of the offending (at [131]). Judge Williams preferred the evidence of Drs Nielssen and Richardson over that of Professor Greenberg, finding their approach more clinically realistic and less mechanically dependent on the DSM IV (at [153]). The court rejected the inference that the absence of documented bizarre behaviour in staff statements established that the accused was behaving normally (at [24]). The court also found that a severe personality disorder coexisted with the bipolar disorder and that their combined effect drove the offending behaviour (at [131]).

Issue 2: Defect of reason caused by disease of the mind

Applying the second M'Naghten Rule as interpreted in Porter and Sodeman, the court was satisfied that the accused was labouring under a defect of reason caused by a disease of the mind, being Bipolar I Disorder exacerbated by a severe personality disorder (at [132]). The court distinguished between a superficial awareness that an act is wrong and the true capacity to reason about its moral quality with moderate calmness. It drew on Dixon J's formulation in Porter and Sodeman, which holds that if disordered faculties prevent an accused from reasoning with moderate composure about the moral quality of her acts, she is prevented from knowing those acts are wrong (at [134]-[135]).

Issue 3: Knowledge of wrongness

The court acknowledged that the accused had made statements, both at the time and subsequently, suggesting awareness that her conduct was wrong (at [136]). However, it found those admissions could not reliably be separated from retrospective rationalisation (at [102]). Relying in particular on Dr Richardson's observation that the accused responded to wrongness "in a superficial, trite way" and dismissed it immediately before proceeding with the assaults (at [150]), the court concluded she could not reason with a moderate degree of calmness about the moral quality of her acts and was therefore prevented from truly knowing they were wrong (at [151]).

Issue 4: Role of the DSM IV

The court expressed a clear view that the DSM IV should not be used by a court as a tool for determining whether a person is mentally ill (at [21]). The judgment noted that the DSM IV is a clinician's aid, not a legal instrument, and that its mechanistic criteria can produce arbitrary results in forensic contexts (at [107]).

Orders Made

  • Not guilty on the grounds of mental illness on each count on the indictment
  • The accused referred to the Mental Health Review Tribunal for review
  • The accused released conditionally, subject to residential conditions, prohibition on contacting certain persons, ongoing treatment with Dr Richardson, compliance with existing AVOs, and good behaviour

Key Takeaways

  • The District Court confirmed that the mental illness defence requires proof, on the balance of probabilities, that a mental illness prevented the accused from reasoning with moderate calmness about the moral quality of her acts, not merely that she lacked conscious awareness of wrongness at the moment of offending (at [147]-[151]).
  • A distinction exists between superficial, trite awareness that conduct is wrong and the deeper capacity to reason about its moral quality: where mental illness collapses that capacity, the defence of not guilty by reason of mental illness may remain available even where the accused made contemporaneous statements acknowledging wrongfulness (at [148], [150]-[151]).
  • Competing psychiatric diagnoses are not resolved by counting expert opinions or by applying DSM IV criteria mechanically; the court must assess the overall clinical picture, giving appropriate weight to the experience and clinical exposure of each expert (at [92], [97]-[99], [153]).
  • The court held that the DSM IV is unsuitable as a judicial tool for determining mental illness in criminal proceedings, finding that its classification criteria can produce arbitrary and legally unreliable outcomes in forensic contexts (at [21], [107]).
  • Silence in third-party statements about unusual behaviour does not support an inference that an accused was behaving normally during the relevant period; drawing such an inference was characterised as a permissible approach by Professor Greenberg but was expressly rejected by the court (at [24]).

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act
- Civil Liability Act
- Crimes Act

Cases
- R v M'Naghten (1833) 8 ER 718
- R v Radford (1985) 42 SASR 266
- R v Fernando [2011] NSWSC 1556
- R v Jennings [2005] NSWSC 789
- R v Porter (1936) 55 CLR 182
- Sodeman v R [1936] 55 CLR 192
- R v Weeks [1993] 66 A Crim R 466
- Willgoss v R (1960) 105 CLR 295
- R v Codere (1916) Cr App R 21
- R v Hodges (1985) 19 A Crim R 129