AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 17 October 2017

R v Papley (No 3)

[2017] NSWSC 1415

Homicide
MENTAL HEALTH DISPOSITION FOLLOWING JUDGE ALONE MURDER TRIAL CONDITIONAL RELEASE ORDER MADE

Citation: R v Papley (No 3) [2017] NSWSC 1415
Court: Supreme Court of New South Wales
Date: 17 October 2017
Judge: R A Hulme J

Background

The accused (identified by the pseudonym "Karen Papley" under a non-publication order) had faced a charge of murdering her young daughter, "Astra," at some point between December 2000 and December 2001. No body was ever found, but following a judge-alone trial, Hulme J was satisfied beyond reasonable doubt that Astra's death had been caused by a deliberate act or omission of the accused. The most probable explanation, on the evidence, was that the child's death was connected to the accused's persecutory delusional beliefs.

On 18 August 2017, Hulme J returned a special verdict of not guilty by reason of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The court was satisfied that, at the time of the offence, the accused was labouring under such a defect of reason from a disease of the mind (a form of schizophrenia) that she did not know her actions were wrong by ordinary standards. Both parties had accepted that the mental illness defence was made out.

This third judgment addressed the disposition of the matter under s 39 of the Act, specifically whether the accused should be detained or released, and on what conditions.

  • Whether, on the balance of probabilities, the safety of the accused or any member of the public would be seriously endangered by her release into the community, as required by s 39(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • What conditions, if any, should attach to any order for release.

Decision

Under s 39 of the Act, the court cannot order release unless satisfied, on the balance of probabilities, that neither the accused's safety nor the safety of any member of the public would be seriously endangered. Hulme J considered two expert psychiatric reports: one from Dr Olav Nielssen, who had reported during the trial, and a joint report from the NSW Community Forensic Mental Health Service prepared by Dr Reece Anderson and Dr Jeremy Resnick following a two-hour interview in September 2017.

Both reports supported community release. The Community Forensic Mental Health Service report noted that the accused had maintained psychiatric stability for several years, adhering voluntarily to antipsychotic medication administered by long-acting injection every 28 days. She was being reviewed regularly by her treating psychiatrist, Dr Fuller, who reported no deterioration in her condition even through the significant stressors of arrest, proceedings, and media attention. The report assessed her historical risk of future violence as moderate, but her current clinical risk as low, provided her illness remained in remission.

The authors of the Community Forensic Mental Health Service report concluded that, on the balance of probabilities, releasing the accused to the community without further inpatient rehabilitation would not seriously endanger her safety or that of any member of the public. Hulme J accepted that conclusion and endorsed the report's recommendations regarding treatment, monitoring, and placement.

The parties were in agreement that a conditional release order was appropriate. Hulme J accepted that position as correct and made orders accordingly, recommending that the Mental Health Review Tribunal consider implementing the report's specific recommendations.

Orders Made

  • The accused is released from custody subject to a condition that she comply with such orders as may be made from time to time by the Mental Health Review Tribunal.
  • The court recommended that the Mental Health Review Tribunal consider making orders consistent with the recommendations in the NSW Community Forensic Mental Health Service report dated 11 October 2017.

Key Takeaways

  • Under s 39(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW), a court returning a special verdict of not guilty by reason of mental illness must be satisfied, on the balance of probabilities, that neither the accused's safety nor any member of the public's safety would be seriously endangered before ordering release.
  • The Supreme Court may order conditional release rather than detention, and compliance with Mental Health Review Tribunal orders is an available and appropriate condition.
  • Psychiatric evidence indicating sustained medication adherence, clinical stability over several years, absence of current violent ideation, and stable living circumstances informed the court's satisfaction that the s 39(2) threshold was met.
  • A historical risk assessment of "moderate" for future violence does not preclude a finding of low current clinical risk, particularly where the accused has remained in remission and continued voluntary treatment despite significant external stressors.
  • The court's role at the disposition stage is to assess danger to the community at the time of the order; ongoing supervision and review passes to the Mental Health Review Tribunal once a conditional release order is made.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- R v Papley [2017] NSWSC 1068 (the primary trial judgment)
- R v Papley (No 2) [2017] NSWSC 1112