Police v BELOFF

Mental illness defence in the Local Court

1. It is unusual for a defence of "not guilty by reason of mental illness" to be raised in a Local Court hearing. Generally, matters where such a defence may be available will be dealt with pursuant to provisions of the Mental Health (Forensic Provisions) Act, s32 or s33. However, the common law defence of mental illness has not been abolished and is still available. So much is in my view clear from the general application of the common law principles of criminal responsibility in relation to matters prosecuted in any jurisdiction. The decision of Berman SC DCJ in R v McMahon [2006] NSWDC 81 is also authority for that proposition, and while not binding on me is clearly persuasive, particularly given his Honour's thorough outline of the history and theoretical justification for the defence in the criminal law. A distinction is drawn in other decisions, referred to by his Honour, between a person who does not know the nature and quality of their act, or that it is wrong, because of a disease of the mind, and a person who also suffers from such a defect of reason but because of the ingestion of alcohol or drugs. In the latter case the common law defence of mental illness will generally not be available (R v Meddings [1966] VR 306).
2. The prosecutor Ms Smith does not dispute that the defence of mental illness is available in the Local Court. She argues that the defendant has not satisfied the onus of proving that the she was mentally ill at the time of the alleged offending on the balance of probabilities.
3. The offences with which the defendant is charged are strict liability offences. A person who is accused of dangerous driving does not have to know or intend that their driving is dangerous in order to be found guilty. The "police pursuit" offence is made out if a person should "reasonably have known" that they were being pursued and did not stop and drove objectively dangerously. That creates an objective test for knowledge. Nevertheless, the defence of mental illness is still available. Again, the prosecutor in this case does not argue that it is not.
4. I have been referred in particular to another decision of Judge Berman SC DCJ in R v Sandoval [2010] NSWDC 255. That was a judge alone trial of Mr Sandoval on serious driving charges also involving a police pursuit and the infliction of grievous bodily harm following a crash. It was clear on the evidence that the accused believed at the time that he was being pursued by demons, as a result of a disease of the mind from which he was suffering. The Crown in that case argued that the defence of mental illness was not available for strict liability driving offences.
5. His Honour reviewed the limited authorities and discussions of the relationship between a mental illness defence, and the mens rea required to be proved for a strict liability offence. He firmly rejected the proposition that the mental illness defence is not available for offences of strict liability. Again, the prosecutor in this case does not argue to the contrary.
6. Sandoval was of course a case where the District Court was dealing with a matter on indictment, with the consequence that a finding of "not guilty by reason of mental illness" would result in the provisions of Part 4 of the Mental Health (Forensic Provisions) Act coming into play. In many cases this would result in an accused becoming a forensic patient and subject to consideration of release by the Mental Health Review Tribunal. As made clear in the report of the NSW Law Reform Commission (Report 138), to which I have been referred by Mr McMahon, a finding of "not guilty by reason of mental illness" in the Local Court does not have such a consequence. Such a finding will ordinarily result in an absolute discharge.
7. Mr McMahon recognises the difficulty with such an outcome where there may be issues of public safety involved because of the nature of the offending. He submits that even if I find the defence can be made out in this case, I could still discharge Ms Beloff under s32 of the Mental Health (Forensic Provisions) Act. As it happens Ms Beloff's case was the subject of a s32 application earlier this year which was, coincidentally, heard by me. The order was opposed by the prosecutor, and I declined to deal with the matter under s32. Although I do not have a transcript of what I then said, it was clear that at the time the defendant was raising, in essence, the defence she raises in these proceedings. The prosecution did not, at that time, accept Dr Nielssen's opinion. The prosecutor still does not accept it.
8. It was and remains my view that, where there is a dispute as to whether a defendant seeking to rely on s32 in a serious matter was actually suffering from a mental illness at the time of the offence that could absolve them of criminal responsibility, the prosecution ought properly to be given an opportunity to test or rebut that proposition. Of course, that is only the case where the balancing act required by s32 would otherwise fall in favour of dealing with the matter according to law. In this case, no psychiatric evidence has been led by the prosecution.
9. There is no impediment to my dealing with the matter in that way now. It is appropriate that in any case where a defendant would otherwise be found not guilty by reason of mental illness in the Local Court consideration should be given to whether a s32 discharge is a more appropriate outcome than an outright discharge. s32 is the mechanism a magistrate has to deal with a person who was mentally ill at the time of the offence (but is not a "mentally ill person" within the meaning of the Mental Health Act at the time of the hearing). It may well be that where the result of dealing with a matter according to law is an outright acquittal as a result of mental illness that balance should fall on the side of dealing with the matter under s32 even where the offence is objectively serious.
10. Of course, for offences that fall within Table 1 and Table 2 of the Criminal Procedure Act the prosecution has a right of election which in appropriate cases would allow a person who was mentally ill at the time of allegedly committing such an offence, or who is unfit to be tried, to be made potentially subject to the provisions of Part 4 of the Mental Health (Forensic Provisions) Act. Unless such an election is made, even in serious cases involving defendants who remain unfit to be tried months after being remanded in custody and being treated a magistrate has no option but to discharge a person under s32 or s33 or to stay proceedings. There is no provision for a special hearing in the Local Court.
11. Ms Beloff is clearly fit to be tried.

Facts

1. A marked police vehicle driven by Cst Martin was stationary at red traffic lights at the corner of Curlewis St. It does not seem to be in dispute that the defendant overtook that police vehicle on the left just after the lights changed to green, pulled in front of it without indicating, continued to travel south on Campbell Parade changing lanes to avoid other vehicles, then went around the roundabout at the intersection of Queen Elizabeth Drive ultimately heading northbound on Campbell Parade. By that time the first police vehicle had called the matter over the radio and another police vehicle which was stationary near Beach Street on Campbell Parade observed the vehicle driven by the defendant travelling northbound on Campbell Parade at a speed which Cst Keremelevski estimated to be about 140 km an hour. The vehicle was also observed to go through at least two red lights, at Hall St and Roscoe St, without stopping or braking.
2. Cst Keremelevski conducted a U-turn on Campbell Parade to pursue the vehicle.
3. The vehicle continued up Campbell Parade to where it joins Military Road continued along Military Road at varying speeds with the police vehicle following it. When about two car lengths behind the Audi, Cst Keremelevski activated lights and siren on the marked police vehicle in an attempt to pull it over just past Wallis Avenue. Ms Beloff did not stop but increased the vehicle's speed. On a couple of occasions during the pursuit along Military Rd the driver of the vehicle indicated a left turn but did not then proceed to turn left. Ultimately she did turn left on Koboda Rd then right to old South Head Road, and then pulled over.
4. Cst Keremelevski said that he asked Ms Beloff why she did not stop. She said "I didn't know it was you". There was a short further conversation. Ms Beloff laughed and smiled. Cst Keremelevski described her appearance in these terms: "... her face was quite pale, her eyes were extremely glassy and watery. The accused had a slight grin on her face and was looking around into the space around her not focusing on me. The accused's responses were in a slow slurred manner and was constantly moving her shoulders and legs." (ex1 para 21)
5. Cst Bobryk was in the same vehicle as Cst Keremelevski. He described the defendant immediately after stopping the vehicle as follows: "I observed BELOFF to behave in an erratic manner. She appeared to be in a dream like state. BELOFF displayed glazed eyes, was unable to stop smiling and spoke in a calm hushed voice. She appeared completely oblivious to the seriousness of the situation." (Ex2 para15)
6. After the defendant was arrested she was taken to Waverley police station where ultimately she was submitted to a breath test which was negative for alcohol. Police suspected she may have drugs in her system however there is no evidence of any analysis which could prove whether she did in fact have drugs in her system on that night. I have earlier dismissed offences of failing to supply a blood sample, and driving under the influence, for reasons which I gave on the last occasion. There is no other evidence which could satisfy me of any drug use proximate in time to this offence.

Consideration

1. The prosecution case is capable of proving beyond a reasonable doubt that Ms Beloff's driving was dangerous both on Campbell Parade at Bondi and when she was being pursued by the police. She was driving very fast in a 40 and 50 km/hr zone. She went through at least two red lights without slowing down. The prosecution case can prove beyond a reasonable doubt that she ought reasonably to have known that police officers were in pursuit of her vehicle and that she was required to stop. The test which is relevant is an objective test, not one which has regard to the subjective circumstances of the defendant. There is no suggestion in this case that there could have been any misunderstanding by the defendant that it was her vehicle which police were requiring to stop, on an objective basis. There is no suggestion that this pursuit was so short that the driver of the vehicle could have thought the police were after someone else. Ms Beloff ought reasonably to have known that the police wanted her to stop. She did not stop. She continued to drive recklessly, well in excess of the speed limit, and in a manner dangerous to others for a distance which has not been specifically estimated in the police evidence but which extended over many blocks and along a winding road.
2. The only issue is whether I am satisfied that the defence has made out the defence of mental illness on the balance of probabilities. That is, have they persuaded me that at the time of the offence Ms Beloff was labouring under a defect of reason caused by a disease of the mind, as a result of which she did not either know the nature and quality of the act she was committing, or if she did know the nature and quality of the act she did not know that it was wrong.
3. The evidence in support of the mental illness defence comes from Dr Olav Nielssen who prepared a report dated 24 January 2015 which is now Exhibit 18 these proceedings. He also gave evidence. In his report he sets out the history that he was given by Ms Beloff. It is a history in which she admitted that up until the year before this incident took place she had been a regular user of a prohibited drugs. She had, according to Dr Nielssen, told him that she used drugs every weekend from the age of 14 until about a year before these offences. She told him she had stopped using all drugs around Christmas 2013.
4. The defendant told Dr Nielssen that she had been sacked from her job as a real estate agent on 10 November 2014. She said at that stage "I thought everyone was watching me… That I was being filmed… What I actually thought was I was a character in one of the biggest movie scenes ever". Dr Nielssen sets out the account that she gave to him of the offence. She told him that she was being led to places, she said "it felt like they had cleared the road for me… I was running through red lights… The police caught up with me… I didn't think they were real police." She told Dr Nielssen she had hallucinated while in the cell at the police station, and that when she was taken to hospital by the police she did not believe it was a real hospital as it was strangely quiet.
5. After she was bailed by the police the next day she referred herself to the South Pacific Private Hospital and was subsequently admitted and prescribed risperidone by Dr Nguyen, a psychiatrist. This medication was successful in treating her symptoms. Dr Nguyen diagnosed her with schizophrenia. Dr Nielssen in his January report did not diagnose her with schizophrenia. In his evidence before me he said that this was because the diagnostic criteria for that illness required a six-month period of symptoms before such a diagnosis should be made.
6. By the time of this hearing in October 2015 Dr Nielssen was of the opinion that Ms Beloff was suffering from schizophrenia. He had received information from her father, including bizarre text messages sent in the days before and on the day of the offences. He had been informed of a family history of psychotic illness and a history of past abuse of stimulant drugs which are known to trigger psychosis. He considered her illness to be a mental illness and that at the time of the offences "her behaviour was influenced by delusional beliefs about events in her surroundings, and grossly disorganised thinking associated with an acute episode of mental illness".
7. In cross-examination before me it was suggested to Dr Nielssen that he could not exclude the possibility that at the time of this offence Ms Beloff had been using prohibited drugs. He agreed that it was a possibility although it is clear from his report and his evidence in court that he did not consider that to be likely. He agreed he was relying on her report of not having used drugs but said that whether she had taken drugs or not this was still an episode of acute mental illness to which this defendant was clearly susceptible. His diagnosis was assisted by the fact that her illness continued past this offending, and clearly resolved in response to medication in a drug-free setting. That reinforced his view that this was an incident that arose out of a psychotic episode triggered by mental illness, even if there was a possibility that drugs may have played a part. He did not have any doubt about the diagnosis that he had given. In his opinion the police on this occasion could have taken the defendant to hospital under the Mental Health Act. It is noted that the custody Sergeant queried whether the defendant may have been suffering from a mental illness, on the night, in the records that he or she kept, as well as querying whether she might be drug affected.
8. He was cross-examined on the apparent responsiveness of the defendant in the various conversations of which police had given evidence, but said that snippets of language do not prove or disprove disorganised thinking. In response to the suggestion that during her entire interaction with the police Ms Beloff did not say anything to them about her belief that she was in a movie, or that the police were not real police, he said that it was quite common for patients not to disclose the presence of symptoms or how those symptoms were affecting them.
9. Dr Nielssen's qualifications to give the opinions he did were not challenged. He agreed that his opinions were based on the defendant's self-report, bolstered as it was by the diagnosis of Dr Nguyen given only shortly after the incident, and the treatment provided to Ms Beloff.
10. It is noted that the prosecution has not sought to call any evidence in response. Ms Smith asks me not to accept on the balance of probabilities that at the time of the offence the defendant did not know the nature of or quality of her act, or did not know that it was wrong.
11. The prosecutor maintains that I could not be satisfied on the balance of probabilities that I should believe the report made by the defendant to Dr Nielssen that she had not used any illegal substances at about the time of the offence in question. The police made certain observations of her consistent with drug use, however in his evidence Dr Nielssen noted that those observations were also consistent with mental illness. The prosecutor submitted that the diagnosis made by Dr Nielssen was made in hindsight, and that at the time of his first report he did not in fact diagnose schizophrenia. It should be noted that at that time another psychiatrist, Dr Nguyen, had already diagnosed schizophrenia and was treating Ms Beloff for it. The Prosecutor referred to the original diagnosis of a substance abuse disorder, together with a psychotic episode. I am satisfied that Dr Nielssen made that diagnosis based on the defendant's own self-report of having used illegal substances for many years, but having stopped that use in December 2013.
12. There is simply no evidence before me that could rebut the account given by the defendant to Dr Nielssen. It is certainly regrettable that the defendant's self-report in this matter was not backed up by blood tests, which could have put the matter beyond doubt. However, the explanation the defendant gave for initially consenting to that, but later withdrawing her consent, is one that I accept is consistent with the delusional state that she was in at the time. The prosecutor submitted that Cst Thomas' observations of the defendant and of conversations with her at the hospital were not consistent with the account given to Dr Nielssen nor with the defendant suffering from delusions at the time. Those conversations, in which the defendant consistently insisted that she was not under arrest, were equally consistent with the delusional belief that she told Dr Nielssen that she had.
13. In the absence of any evidence to the contrary, and noting Dr Nielssen's opinion was not shaken in any way by cross-examination, I consider that I cannot do other than accept that at the time of the offending the defendant was suffering from a disease of the mind, which he initially described as a psychotic illness, but in court described as schizophrenia. The effect of that disease on the defendant at the time of these offences was that she believed that she was an actor in a movie, and that the police around her were also actors. Dr Nielssen describes her behaviour has being "influenced by delusional beliefs about events in her surroundings". It is clear that Ms Beloff knew that she was driving. However in light of her delusional beliefs she did not know that it was wrong to drive as she did.
14. It follows that I am satisfied that the defendant can discharge her onus of proving that she is not guilty of these offences by reason of mental illness.
15. Mr McMahon submits that at any stage of these proceedings I can still consider whether the defendant should be discharged under section 32, and take that action of my own motion. He indicated that he would not wish to be heard if I were to form the view that that was the appropriate order in these matters.
16. As I have already noted, if a person is found not guilty by reason of mental illness in the Local Court, there is no process by which they can be remanded as a forensic patient or otherwise be required to be considered by the Mental Health Review Tribunal under the relevant provisions of the Mental Health (Forensic Provisions) Act. An outright discharge is not always the outcome which best serves the public interest and in many matters a section 32 order is granted at an early stage of proceedings notwithstanding that it is clear that a person may have a mental illness defence available to them. That was not the case in this matter. Having now heard that evidence and having made the findings that I have, it does appear to me now to be more appropriate to deal with this defendant pursuant to section 32 than otherwise according to law.
17. Continuing to deal with Ms Beloff according to law will result in her outright discharge, and a recording of "not guilty by reason of mental illness". Dealing with her pursuant to section 32 will mean that there is a level of supervision for a period of six months, which it is to be hoped will reduce any potential risk to the public. Mr McMahon referred me to the decision of Justice Adams in Mantell v Molyneux [2006] 68 NSWLR 46. While the case concerned a person who was found by his Honour to be clearly unfit to be tried, which meant that (in the absence of provision for the equivalent of a special hearing in the Local Court) they must be discharged, or the proceedings permanently stayed, nevertheless it could have been appropriate to deal with the matter under section 32.
18. Having found that Ms Beloff was mentally ill at the time of the offences, I consider it more appropriate to deal with her under section 32 of the Mental Health (Forensic Provisions) Act than otherwise according to law. She still requires ongoing treatment, and accordingly I propose to discharge her on condition that she continue to have treatment, and will hear further on the appropriate orders. C Farnan Magistrate Waverley Local Court 30 October 2015

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2023