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Supreme Court 13 December 2022

R v BB

[2022] NSWSC 1698

Homicide
CRIME MURDER DEFENCE OF MENTAL HEALTH IMPAIRMENT POST NATAL DEPRESSION BIPOLAR DISORDER

Citation: R v BB [2022] NSWSC 1698
Court: Supreme Court of New South Wales
Date: 13 December 2022
Judge: Wilson J

Background

The accused (identified by the pseudonym "BB" due to suppression requirements) was charged with the murder of her eight-week-old baby, referred to as "Baby Z," on an indictment dated 1 August 2022. The accused had a prior diagnosis of bipolar disorder following a psychiatric admission in 2019. After giving birth in late November 2020, she experienced what psychiatrists later assessed as a post-partum psychosis superimposed on her underlying bipolar disorder.

In early February 2021, the accused attended a GP accompanied by her husband and Baby Z. The GP noted symptoms of depression and recorded test results raising concerns about risk to the baby. Days later, the alleged fatal act occurred, followed by an attempted suicide by the accused.

Rather than proceeding to trial when the matter came before the Court on 12 December 2022, both the Crown and the defence agreed that the evidence established a defence of mental health impairment. The Court was asked to enter a special verdict under s 31 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the MHCIFP Act").

  • Whether the requirements of s 31 of the MHCIFP Act were satisfied, permitting the Court to enter a special verdict without a trial where both parties agreed the evidence established a mental health impairment defence.
  • Whether, on the balance of probabilities, the accused had a "mental health impairment" as defined by s 4 of the MHCIFP Act at the time of the alleged offending.
  • Whether that impairment meant the accused did not know the nature and quality of her act, or did not know that the act was wrong (that is, could not reason with a moderate degree of sense and composure about its wrongfulness).
  • Whether a formal written judgment was required in s 31 proceedings, given the apparent tension between s 31 of the MHCIFP Act and s 133 of the Criminal Procedure Act 1986 (NSW).

Decision

The judgment question: Wilson J identified an apparent tension between s 31 of the MHCIFP Act, which allows the Court to enter a special verdict without a trial, and s 133 of the Criminal Procedure Act, which requires a judge trying proceedings without a jury to provide reasons. Her Honour noted that s 31 proceedings arguably do not constitute "trying" a criminal case, so s 133 may not strictly apply. Nevertheless, consistent with common law obligations of transparency and open justice, Her Honour elected to deliver a full judgment.

Satisfying s 31: The procedural prerequisites under s 31(a) and (b) were clearly met: both parties agreed the evidence established the defence, and the accused was represented by senior counsel and a solicitor. The Court then turned to consider whether the evidence satisfied s 31(c), namely whether it was itself satisfied that the defence was established.

The psychiatric evidence: Two forensic psychiatrists, Dr Stephen Allnutt and Dr Adam Martin, gave consistent opinions. Both concluded that the accused was suffering from a severe mental illness at the time of the offending, most likely post-partum psychosis in the context of her underlying bipolar disorder. Both expressed the view that while the accused probably knew the nature and quality of her act, she could not appreciate its wrongfulness or reason about it with moderate composure, given the severity of her psychotic state. Her Honour noted that neither psychiatrist expressly addressed the statutory criterion in s 4(1)(b) requiring the disturbance to "be regarded as significant for clinical diagnostic purposes," but found that criterion was inferentially satisfied given the nature of the diagnoses.

Verdict: The Court was satisfied beyond reasonable doubt that the accused committed the physical acts required to prove murder. It was also satisfied on the balance of probabilities that, due to her mental health impairment, the accused did not know the act was wrong at the time. The defence of mental health impairment was established, and the special verdict was returned accordingly.

Orders Made

  • The Court returned the special verdict of act proven but not criminally responsible in respect of the charge of murder on the indictment dated 1 August 2022.

Key Takeaways

  • Under s 31 of the MHCIFP Act, a court may enter a special verdict of act proven but not criminally responsible without proceeding to trial, where both parties agree the evidence establishes a mental health impairment defence and the court is independently satisfied that the defence is established.
  • A mental health impairment defence does not require proof that the accused was unaware of the nature and quality of the act: it is sufficient that the impairment meant the accused could not reason with a moderate degree of sense and composure about whether the act was wrong.
  • The Supreme Court held that, although s 133 of the Criminal Procedure Act may not strictly require reasons in s 31 proceedings (given no trial is conducted), the common law principle of transparent judicial decision-making supports delivering a formal judgment regardless.
  • Where psychiatric evidence does not expressly address every element of the s 4 definition of "mental health impairment," a court may find those elements inferentially satisfied from the overall clinical diagnosis and opinion.
  • Publication of the identities of both the accused and the deceased was prohibited under the Children (Criminal Proceedings) Act 1987 (NSW), reflecting the protections that Act affords where the victim is a child.

Legislation and Cases Referenced

Legislation:
- Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 30, 31
- Criminal Procedure Act 1986 (NSW), s 133
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A(1)(c), 15A(5)
- Evidence Act 1995 (NSW), s 191

Cases: No cases were cited in the judgment.