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Supreme Court 11 December 2014

R v MB (No. 2)

[2014] NSWSC 1755

Homicide
CRIMINAL LAW MURDER CROWN CASE CIRCUMSTANTIAL MURDER INFANTICIDE ONUS OF PROOF

Citation: R v MB (No. 2) [2014] NSWSC 1755
Court: Supreme Court of New South Wales
Date: 11 December 2014
Judge: Bellew J

Background

The accused, MB, was charged with the murder of her six-month-old daughter, OB, at North Strathfield on 18 November 2010. The Crown alleged that MB drowned OB in a bathtub, either by deliberately holding her under the water or by leaving her submerged while knowing the risk of death. OB was found floating face-down in the bath when ambulance officers arrived; she could not be revived.

In the period before OB's death, MB had developed an intense and medically unfounded belief that OB had a genetic abnormality, specifically achondroplasia (dwarfism). Multiple specialists confirmed that OB was a healthy, normal child, but MB remained unconvinced. Evidence emerged of MB expressing resentment at OB's birth, a lack of bonding and affection, internet searches about infant deaths and drowning, and statements to friends including references to throwing OB "in the bin" and jumping off a cliff with her.

MB had previously been found unfit to be tried. The Mental Health Review Tribunal determined she would remain unfit for at least the following 12 months. As a result, the matter proceeded as a special hearing under s. 19 of the Mental Health (Forensic Provisions) Act 1990, conducted by the judge alone. The standard for the hearing required the court to acquit MB unless, on the limited evidence available, it was proved to the requisite criminal standard that she committed the offence.

  • Whether the Crown proved, to the requisite criminal standard on the limited evidence available, that MB murdered OB.
  • Whether the circumstantial Crown case established that MB caused OB's death intentionally or with reckless indifference to human life.
  • Whether MB's conflicting accounts of events amounted to lies demonstrating consciousness of guilt, or were instead manifestations of her mental illness.
  • Whether the partial defence of infanticide under s. 22A of the Crimes Act 1900 (NSW) was established, specifically whether MB's disturbed state of mind arose "by reason of... not having fully recovered from the effect of giving birth."
  • Whether the partial defence of substantial impairment by abnormality of mind under s. 23A of the Crimes Act 1900 (NSW) was established so as to reduce the offence from murder to manslaughter.
  • What limiting term should be nominated under the special hearing regime, in lieu of a sentence of imprisonment.

Decision

The Crown case and the cause of death. Bellew J found the Crown's circumstantial case established to the requisite standard. The medical evidence confirmed drowning as the cause of death. The court found MB's conduct in the leadup to OB's death, her expressions of resentment, her internet research into infant deaths and drowning, her lack of bonding and affection, and her failure to act when calling 000, collectively supported the inference that she deliberately drowned OB. Injuries consistent with fingernail marks on OB's head were also noted.

Lies and consciousness of guilt. MB gave several different accounts of events surrounding OB's death. The court considered whether those conflicting accounts should be treated as lies evidencing consciousness of guilt. Bellew J acknowledged the medical evidence that MB's disturbed mental state could explain inconsistencies in her accounts, but ultimately found the conflicting accounts could still be treated as some evidence of consciousness of guilt when weighed alongside all other circumstances.

Infanticide. The partial defence of infanticide requires, among other things, that the accused's balance of mind was disturbed "by reason of her not having fully recovered from the effect of giving birth." The expert evidence attributed MB's disturbed state to a range of factors, including prodromal symptoms of schizophrenia that pre-dated and went beyond the birth itself. Bellew J found the onus of establishing infanticide rested on the accused and that, on the evidence, the disturbed state of mind was not sufficiently explained by the effect of giving birth, as opposed to other independent causes. The defence was not made out.

Substantial impairment. The court accepted that MB suffered an abnormality of mind. However, the evidence showed she was not constantly incapacitated and was capable of functioning in daily life during the relevant period, attending medical appointments, socialising, and attending to personal matters. There was no evidence of a psychotic episode on the morning of OB's death. Bellew J concluded the impairment was not so substantial as to warrant reducing her blameworthiness from murder to manslaughter, and the partial defence under s. 23A was not established. The court found, on the limited evidence available, that MB committed the murder of OB.

Orders Made

  • On the limited evidence available, the court found that the accused committed the offence charged: that on 18 November 2010, at North Strathfield in New South Wales, she murdered OB.
  • The court indicated it would hear submissions from defence counsel before nominating a limiting term under s. 23(1) of the Mental Health (Forensic Provisions) Act 1990 (no non-parole period is set under that regime).

Key Takeaways

  • A special hearing under the Mental Health (Forensic Provisions) Act 1990 does not result in a conviction; it results in a finding, on the limited evidence available, that the accused committed the offence. The available verdicts are distinct from those at an ordinary trial.
  • The partial defence of infanticide under s. 22A of the Crimes Act 1900 (NSW) requires that the disturbance of the accused's mind arise specifically from not having fully recovered from the effect of giving birth. Where expert evidence attributes the disturbed state to independent psychiatric illness or a combination of factors, the connection to childbirth may not be established.
  • Where medical evidence indicates that an accused's inconsistent accounts are a manifestation of mental illness rather than deliberate fabrication, the court must still weigh whether those accounts constitute lies evidencing consciousness of guilt, but that medical context is a relevant consideration in that assessment.
  • Under s. 23A, substantial impairment as a partial defence requires more than proof of an abnormality of mind. The impairment must be of sufficient weight to reduce the accused's culpability to the level warranting manslaughter rather than murder, and a demonstrated capacity to function in daily life during the relevant period weighs against that conclusion.
  • Following a special hearing finding that the accused committed the charged offence, the court nominates a limiting term rather than imposing a sentence of imprisonment, and does not set a non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss. 22A, 23A
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss. 16, 19, 21A, 22, 23
- Criminal Code Act 1974 (PNG)
- Infanticide Ordinance 1953–1956 (PNG)

Cases
- R v MB (NSWSC, 6 February 2014, unreported)
- Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410
- Burrell v R [2009] NSWCCA 193
- Doney v R [1990] HCA 51; (1990) 171 CLR 207
- Edwards v R [1993] HCA 63; (1993) 178 CLR 193
- Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22
- Morgan v Attorney-General of the State of Queensland (1986) 24 A Crim R 342
- R v Bilick and Starke (1984) 36 SASR 321
- R v Bretherton [2013] NSWSC 1036
- R v Heyde (1990) 20 NSWLR 234
- R v JMR (1991) 57 A Crim R 39
- R v Lane [2011] NSWCCA 157; (2011) 221 A Crim R 309
- R v Lodhi [2006] NSWSC 672
- R v Micaleff [2002] NSWCCA 480; (2002) 136 A Crim R 127
- R v Ray (2003) 57 NSWLR 616
- R v Sutton (1986) 5