Citation: R v Papley [2017] NSWSC 1068
Court: Supreme Court of New South Wales
Date: 18 August 2017
Judge(s): R A Hulme J
Background
The accused faced a charge of murder in relation to her infant daughter, who was between 16 and 28 months old during the period alleged in the indictment (25 December 2000 to 25 December 2001). The child had not been seen since 2000 or 2001, and extensive police searches produced no sign of her. The child's identity was suppressed under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), and pseudonyms were used throughout the published judgment.
The accused applied for a judge-alone trial, to which the Crown consented. The trial proceeded before Hulme J without a jury. The accused did not give evidence, which the court noted was entirely her right and carried no adverse inference.
The case was entirely circumstantial. There was no direct evidence of the child's death, no body, and no direct evidence of any act by the accused. The accused had a significant history of serious mental illness, including schizophrenia, and raised the defence of mental illness. The Crown supported that defence once it had established the foundational elements of the offence.
Legal Issues
- Whether the Crown could prove beyond reasonable doubt that the child was deceased, given no body was ever found.
- Whether the Crown could prove that the child's death was caused by a deliberate act or omission of the accused.
- Whether lies told by the accused evidenced a consciousness of guilt, and how mental illness affected the assessment of those lies.
- Whether the defence of mental illness was established on the balance of probabilities, such that the accused should be found not guilty by reason of mental illness.
Decision
Was the child deceased? The court was satisfied beyond reasonable doubt that the child was deceased. Despite the absence of a body, the circumstantial evidence, including the complete absence of any sign of life over many years and the results of extensive searches, supported the inference of death as the only rational conclusion. The court drew on the principles in The Queen v Baden-Clay [2016] HCA 35, emphasising that all circumstances must be weighed together rather than assessed piecemeal, and that an inference of guilt must be more than mere speculation.
Did the accused cause the death? The court was also satisfied beyond reasonable doubt that the child's death resulted from a deliberate act or omission by the accused. Evidence that the accused had told lies about the child's whereabouts in Children's Court proceedings in 2004 was assessed as consciousness of guilt. The court applied established principles requiring that lies be connected to the offence and motivated by a fear of revealing guilt. While the accused's mental illness was considered as a possible alternative explanation for the lies, the court concluded the lies were nonetheless probative of guilt.
Was the defence of mental illness established? The accused had been diagnosed with schizophrenia and was entirely untreated and unmedicated during the period in which the child died. Expert psychiatric evidence from two psychiatrists was unanimous: the accused suffered from chronic persecutory delusions, including beliefs involving her daughter, her mother, and authorities. Both experts agreed the defence of mental illness was available. The court accepted this evidence, finding that at the time the accused caused the child's death, she was labouring under such a defect of reason from a disease of the mind that she did not know that what she was doing was wrong by ordinary standards.
The court noted that both the Crown Prosecutor and senior counsel for the accused submitted the mental illness defence should be accepted, and that a contrary finding would have been perverse on the evidence.
Orders Made
- The accused was found not guilty by reason of mental illness.
Key Takeaways
- A murder charge can be established in the complete absence of a body where the circumstantial evidence, taken as a whole, excludes any reasonable hypothesis other than the accused caused the victim's death.
- The Supreme Court confirmed that lies told by an accused may constitute evidence of consciousness of guilt, but only where they relate to a significant circumstance connected to the offence and were motivated by fear of revealing guilt. Mental illness must be considered as a potential alternative explanation for lies before they are treated as probative.
- Where expert psychiatric evidence is unanimous that the accused suffered from a disease of the mind causing a defect of reason such that the accused did not appreciate that the conduct was wrong by ordinary standards, the mental illness defence under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) is established on the balance of probabilities.
- Under the McNaghten test (as applied in Australian jurisprudence through The King v Porter and Stapleton v The Queen), the relevant question is whether the accused did not know that the act was wrong in accordance with ordinary standards adopted by reasonable people, not merely whether the accused lacked personal moral awareness.
- In circumstantial cases, the court reaffirmed the Baden-Clay principle that all circumstances must be considered together and weighed as a whole; piecemeal analysis of individual pieces of evidence is an error.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW) s 15A
- Criminal Procedure Act 1986 (NSW) ss 132, 132A
- Evidence Act 1995 (NSW) s 89
- Mental Health (Forensic Provisions) Act 1990 (NSW) s 38
Cases:
- The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308
- Lane v R [2013] NSWCCA 317; 241 A Crim R 321
- Hawkins v The Queen [1994] HCA 28; 179 CLR 500
- The King v Porter [1933] HCA 1; 55 CLR 182
- Stapleton v The Queen [1952] HCA 56; 86 CLR 358
- Sodeman v The King [1936] HCA 75; 55 CLR 192
- McNaghten's Case (1843) Cl and F 200; 8 ER 718
- R v Minani [2005] NSWCCA 226; 63 NSWLR 490
- R v PL [2009] NSWCCA 256; 199 A Crim R 199