Police v BELOFF

Consideration

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.
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.
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.
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.
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.
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".
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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

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Judgment (6 paragraphs)

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Cases Cited (2)