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Supreme Court 25 May 2023

R v Seville (a pseudonym)

[2023] NSWSC 556

Homicide
MENTAL HEALTH C RIMINAL PROCEEDINGS HOMICIDE OF BABY OF ACCUSED EVIDENTIARY INQUIRY AS OPPOSED TO TRIAL SPECIAL VERDICT RETURNED

Citation: R v Seville (a pseudonym) [2023] NSWSC 556
Court: Supreme Court of New South Wales
Date: 25 May 2023
Judge: Button J

Background

The accused (identified by pseudonym) was a 32-year-old woman with no prior criminal history, a university education, and an active social and family life. In May 2021, while alone at home with her four-month-old son, she drowned the infant in a baby's bath. Her husband was briefly absent from the home at the time.

In the months leading up to the death, the accused had shown signs of serious mental deterioration. Family and friends observed her as "not herself." She searched the internet with suicidal intent, attended a train station with a view to self-harm, and consulted a general practitioner who referred her to a psychologist and prescribed an antidepressant. A suicide prevention service also reached out to her. She did not take the medication and did not engage with that service.

The matter proceeded not as a conventional trial but as an evidentiary inquiry under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Both the Crown and the defence joined in submitting that the accused was not criminally responsible by reason of mental health impairment, and both were represented by counsel experienced in criminal law.

  • Whether the accused was suffering from a mental health impairment at the time of the act, within the meaning of s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
  • Whether that impairment caused the accused not to appreciate the wrongfulness of her act, satisfying the defence of mental illness under s 28 of the Act
  • Whether a special verdict of "act proven but not criminally responsible" should be entered under s 30 and s 31 of the Act

Decision

Button J was satisfied beyond doubt that the accused committed the act causing her son's death. The central question was whether she was criminally responsible for it.

Two eminent forensic psychiatrists gave uncontested evidence that the accused suffered from peri-natal major depressive disorder with psychotic features at the time. Button J accepted this diagnosis, finding that the accused's thinking and feelings were thoroughly divorced from reality. The court noted this conclusion was reinforced by the contemporaneous signs of mental deterioration, her completely out-of-character conduct, and the fact that she was made an involuntary patient promptly after being charged.

The court acknowledged some superficial indicators that the accused had a degree of awareness of wrongfulness: she waited until her husband left before acting, apologised immediately on his return, and appeared to understand that incarceration might follow. However, Button J found those indicators existed only at a shallow level. At a deeper level, the accused held the delusional belief that she was solving her family's problems and doing something righteous, not something wrong.

Accordingly, Button J was satisfied that the accused did not know her act was morally wrong and was unable to reason with a moderate degree of sense and composure about whether it was wrong as perceived by reasonable people. The special verdict of "act proven but not criminally responsible" was returned, consistent with the joint submission of both parties.

Orders Made

  • A special verdict entered under s 31 of the Act: the act alleged in the indictment is proven but the accused is not criminally responsible
  • The accused is to be detained at the Forensic Hospital Malabar, or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law
  • The Registrar is to notify the Minister for Health of the orders within 7 days
  • The Registrar is to notify the Mental Health Review Tribunal of the verdict and orders within 7 days, and provide it with a copy of the judgment, orders, and exhibits
  • The Registrar is to notify Justice Health of the verdict and orders within 7 days, and provide it with a copy of the judgment, orders, and exhibits

Key Takeaways

  • A special verdict of "act proven but not criminally responsible" under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) does not require the accused to be unaware of the physical nature of their act. It is sufficient that a mental health impairment caused the accused not to appreciate, in any real sense, that the act was morally wrong.
  • Superficial indicators of awareness of wrongfulness (such as concealing the act or anticipating punishment) will not necessarily defeat a mental illness defence where the court is satisfied that, at a deeper level, the accused held sincere delusional beliefs that the act was righteous.
  • Under s 4 of the Act, an affective disorder such as clinical depression, particularly when accompanied by psychotic features causing an ongoing disturbance of thought and mood, can constitute a mental health impairment for forensic purposes.
  • Proceeding by way of evidentiary inquiry under s 31 of the Act, rather than a conventional trial, was commended by Button J as avoiding unnecessary formality, legalism, and emotional pain for all involved, where the relevant facts were not in dispute.
  • Following a special verdict, the court's orders must address both the ongoing care of the accused and the protection of the community. Detention at a forensic hospital, subject to review by the Mental Health Review Tribunal, was the appropriate outcome here.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 30, 31, 33, 34

Cases cited: No cases were cited in the judgment.