Citation: R v Barolia (No. 3) [2021] NSWDC 697
Court: District Court of New South Wales
Date: 14 September 2021
Judge(s): Neilson DCJ
Background
The accused, a 57-year-old woman, was charged with recklessly wounding her 26-year-old son, who had severe intellectual and physical disabilities including cerebral palsy and was entirely non-verbal and dependent on care. She had been his primary carer for most of his life. The offence occurred on 4 December 2019 at the family home in Illawong, the day after the accused had undergone gastroscopy and colonoscopy under general anaesthetic.
On the morning of the offence, the accused's husband left the house briefly to collect a care worker. During that interval, the accused struck her son multiple times with a large kitchen knife to the neck and back. The injuries included an 18-centimetre continuous laceration around the neck. The accused admitted to police that she had inflicted the injuries and demonstrated the motion she had used.
The actus reus (the physical act of wounding) was not in dispute. The sole question before the court was whether the accused was entitled to a special verdict on the basis that she was not criminally responsible due to a mental health impairment at the time of the offence.
Legal Issues
- Whether the accused was suffering from a "mental health impairment" at the time of the offence within the meaning of section 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
- Whether the accused's mental health impairment meant she did not know the nature and quality of her act, or did not know that the act was wrong, within the meaning of section 28(1) of the Act.
- Whether the accused was entitled to a special verdict that the act was proven but she was not criminally responsible.
Decision
Issue 1: Mental Health Impairment
The court considered the expert opinions of two psychiatrists. Dr Nielssen diagnosed either an episode of delirium or a brief psychotic episode, with the anaesthetic administered the day before contributing to onset (at [34]-[35]). Dr Martin diagnosed a brief psychotic episode triggered by the anaesthetic against a background of chronic depressive disorder caused by years of caring for her disabled son (at [52]-[53]). The accused had received 170 mg of propofol, equivalent to 4 mg per kilogram of her 42 kg body weight, and had been advised not to make important decisions for 24 hours after discharge (at [25]).
The court found that both diagnoses satisfied the definition of "mental health impairment" in section 4 of the Act. There was a significant, temporary disturbance of thought, volition, or perception that impaired the accused's judgment and behaviour (at [40]-[41]). The court also held that the anaesthetic, administered intravenously without any voluntary act of ingestion by the accused, did not fall within the exclusion in section 4(3) for the temporary effects of ingesting a substance (at [42]).
Issue 2: Knowledge of Nature and Wrongfulness of the Act
Dr Nielssen's opinion was that the accused did not know the nature and quality of her act, satisfying section 28(1)(a), and also did not know the act was wrong, satisfying section 28(1)(b) (at [44]). Dr Martin's opinion was that the accused knew the nature and quality of the act but did not know it was wrong, in that she could not reason with a moderate degree of sense and composure about whether the act was wrong as perceived by reasonable people (at [55]). Both experts therefore agreed that at least section 28(1)(b) was satisfied.
Issue 3: Preference Between Expert Opinions and Special Verdict
The court noted the unusual position that both the accused's expert and the Crown's expert supported the mental health defence (at [56]). Although not strictly required to choose between them, the court indicated a preference for Dr Martin's formulation. Dr Martin had regard to body-worn camera footage from attending police, which Dr Nielssen did not address in his report, and his diagnosis better explained the accused's longstanding chronic depressive condition arising from years of carer stress (at [57]-[58]). The court was satisfied on the balance of probabilities that the mental health defence had been established, and returned a special verdict that the act was proven but the accused was not criminally responsible (at [60]).
Orders Made
- Special verdict returned: act proven but accused not criminally responsible.
- Report requested from the Forensic Mental Health Network regarding the accused's condition and whether her release would endanger her safety or that of any other person.
- Registrar directed to provide the Network with specified exhibits, including agreed facts, medical and psychiatric reports, and the toxicologist's report.
- Matter adjourned to 3 December 2021.
Key Takeaways
- Under section 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a transient episode of delirium or brief psychosis qualifies as a "mental health impairment" where it significantly disturbs thought, volition, or perception and impairs judgment and behaviour (at [40]-[41]).
- The District Court held that an anaesthetic administered intravenously does not constitute "ingesting a substance" for the purposes of the exclusion in section 4(3), because ingestion carries the connotation of a voluntary, oral act (at [42]).
- Where both the accused's and the Crown's psychiatric experts agree that the elements of the mental health defence are satisfied, the court is entitled to return a special verdict of act proven but not criminally responsible (at [56]).
- A prior history of a brief psychotic episode, combined with years of documented carer stress and a recent medical intervention, can together support a finding that a mental health impairment was operative at the time of an offence, even where the impairment was brief and transient (at [57]-[58]).
- The statutory formulation in section 28(1)(b) of the new Act, requiring that the accused did not know the act was wrong in that they could not reason with a moderate degree of sense and composure, reflects the principle articulated by Dixon J in R v Porter (1933) 55 CLR 182 (at [44]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020
- Mental Health (Forensic Provisions) Act 1990
Cases
- R v M’Naghten (1843) 8 ER 718
- R v Porter (1933) 55 CLR 182