R v Benhima

Material presented to the Court

1. The Crown's evidence was contained within a binder of material marked as Exhibit A. That material included statements of witnesses, police and civilian, a transcript of interviews conducted with the complainant on 18 July 2019, recorded by "body cam" worn by police, a transcript of the 'electronic interview' conducted with the accused on 23 July 2019, Custody Management records, Ambulance Electronic Medical Record (relating to the accused), medical report from Dr Kerkham, relating to the treatment of Mr Kooper setting out injuries that constitute relevant "wounds", photographs, a 'Forensic Results Summary' (relating to physical items including a knife examined on behalf of the New South Wales Police Force) and a medical report from Dr Kerri Eagle, Forensic Psychiatrist, dated 24 April 2020, relating to her examination of the accused conducted on 16 April 2020 at the request of the Crown. I have read all that material. There is no dispute as to the essential facts relating to the wounding of Mr Kooper.
2. The defence tendered a report from Dr Richard Furst, dated 16 January 2020, relating to his earlier examination of the accused. I have read that report. Both medical reports addressed the issue of "fitness to be tried" and whether the accused was suffering relevantly from "mental illness" at the time of the alleged wounding of the complainant as discussed at Part 4 of the Act (ss.38, 38A and 39 of the Act). The two psychiatrists, whose qualifications I need not repeat as no issue arose in respect of their expertise, agreed that the accused had available to her the "defence" of mental illness.

Factual matters relevant to the charge

1. The evidence is not in dispute. The complainant and the accused had been in a relationship for "about a week", according to the complainant. In his interview on the morning of 18 July, he stated that he attended upon the accused's flat intending to stay the night at about 9:00pm on 17 July. The accused and the complainant watched a film together and ultimately he fell asleep in the accused's bed. There is some suggestion from the accused in a history given to Dr Eagle, of some ingestion of methylamphetamine but this is not a significant matter in this case.
2. Mr Kooper woke up and felt pain in his back. As he said to interviewing police: "I woke up and looked at her and she stabbed me with a knife and I turned around and then she stabbed me in the chest, and then I've grabbed her hands and pulled her to the lounge and I squeezed her hands and then she eventually let go of the knife". He then; "grabbed (his) bags and ran outside". The other occupants of the house, particularly Mr Morrin, heard a female screaming. He went to an outside stairwell and saw the complainant who said: "I've been stabbed in the back, she's crazy".
3. The complainant was in possession of the knife which was dropped on the stairs and Mr Morrin saw some blood on his back. The complainant was distressed. Mr Morrin contacted '000' and police and ambulance duly attended within a short period of time. Mrs Morrin picked up the knife from the stairs with paper towels and placed it on the kitchen bench.
4. The complainant was ultimately conveyed to Wollongong Hospital where he received treatment and was found to be suffering from three wounds. There was a penetrative wound to the left anterior chest, a penetrative wound to the left upper back and one to the right upper back. There was a small left pneumothorax and a minor comminuted fracture to the left second rib. Each of the back wounds were treated with three sutures but the complainant refused treatment to a chest wound by way of suture and discharged himself against advice from medical staff 10 hours after being admitted to hospital.
5. Exhibit B contains two separate files. The first file shown to me was of the 'body cam' images at the accused's flat where she is seen already handcuffed behind her back and spoken to by the male police officer in the presence of her father most of the time and from time to time in the presence of a female police officer. These images were the subject of some comment by Dr Eagle which accords with my observation. The accused is clearly distressed, restless, sometimes incoherent, seemingly not fully appreciating all the time what is happening around her. From time to time she has difficulty breathing or "hyperventilates" as the transcript of that footage states. It is not necessary to repeat in detail what is said by her during this period of time. Much of the information provided to the police is given by her father, including details of her previous medical treatment, the fact that she had been diagnosed with schizophrenia and was on medication and that she had been in hospital "a couple of months ago". The police officer was told by the accused's father that the complainant "goes through episodes". The police officer is told by the accused's father that she is not violent and has never tried to hurt herself before. He says at one point: "This is the worst…. I've ever seen (her)". In the statement of Mrs Morrin, she states that she had known the accused for 16 years and that, "although she has schizophrenia she is not a violent person. When (she) is having audible hallucinations, she smiles and giggles.… I have never witnessed (her) act out violently. I have never seen aggression from her…"
6. The second file in Exhibit B, filmed seven hours later, apparently after she had been admitted to hospital and sedated, shows her to be distressed, but not to the same extent, more coherent, able to remember details about the night, however, misstating the name of the complainant as "Eden" Kooper, expressing concern about his welfare, and stating that she wasn't "feeling very well", that she had, "really bad anxiety rushing through (her) body".
7. When asked if she knows why she is in hospital she said: "cause I was apparently suffering from a mental illness and they're saying that I hurt Ben…." "a boyfriend". She understood she had been arrested but when told that she was arrested for stabbing "Ben" she states "oh my God". A number of times she says that she is "not well" or "not well at all" and asks for a solicitor.
8. In the electronic interview conducted five days later on 23 July 2019 she has an understanding of what is happening but regularly asks to speak to a solicitor or a lawyer, tells the police that she suffering from "anxiety", says at one stage "I got set up", states that she is "the vulnerable one here", but also makes comments or gives answers that appear unrelated to or disconnected with the subject matter of the questions.
9. Dr Eagle's report, produced by the Crown, is a very thorough document setting out a great deal of history which I need not repeat. She has read essentially all the material in the Crown bundle given to me, including the report of Dr Furst, records from Shellharbour Hospital in relation to hospitalisations of the accused and correspondence from her treating psychiatrist. Although there were some 'inherent limitations' of the clinical examination, the doctor was confident in her assessment of the matter. She assessed her current presentation with the medication that she was on, her "psychiatric history", her "substance use history", her account of the relevant events, personal history, details of documentation review and conducted a mental state examination of her, amongst other matters.
10. There is no need to repeat much of the extensive information either summarised or quoted by the doctor. But some are particular matters worth noting are, the confirmed history and diagnosis of "chronic paranoid schizophrenia" with a number of hospital admissions for treatment for bizarre behaviour and hallucinations before July 2019. She was described on admission to Shellharbour Hospital on 18 July 2019 (where she remained as an inpatient until 23 July 2019) as "paranoid and behaving in a bizarre manner" unable to give a "clear account of the circumstances of the alleged stabbing". She told hospital staff that she had used "ice" and drank "two glasses of wine". She presented as "thought disordered". She gave a history of minimal prior use of methamphetamines.
11. So far as the assault upon Mr Kooper was concerned she gave a somewhat disordered account to Dr Eagle, denied any motive or background of conflict and that she was responding to "auditory hallucinations". The doctor reported, "that …voices may have been telling her to do things at the time". The accused stated: "if this is true, I am dreadful. I shouldn't ever think that people are going to hurt me". She said she did not recall specifically what had occurred. She said "I liked the company so I don't understand what went wrong".
12. So far as her mental state at the time of the examination, although she did not display formal thought disorder, she had difficulty finding the words or phrases to describe what she was thinking from time to time and described persecutory ideas involving others that were not well articulated. She described "ongoing passivity phenomena (delusions of control)" and stated she believed others could read her thoughts and acknowledged fluctuating experiences involving others seeing inside of her. She also described persistent "intermitted (sic) auditory hallucinations". She described feeling fearful at times, although this had improved. "Her fear and anxiety appear to correlate with her perceptual disturbances and persecutory ideas". She "acknowledged her mental illness" and acknowledged that her symptoms prevented her from being able to identify what was real and that there had been improvement in recent times with treatment.
13. Dr Eagle diagnosed the accused as suffering from schizophrenia, which she described as "a chronic psychotic disorder and is considered a neurodevelopment disorder. (Her) illness has been characterised by relapses of acute psychosis giving rise to thought disorders and delusions and perceptual disturbances."… "(She) appears to have a treatment resistant form of the illness in that she has been trialled on at least two antipsychotic medications and continued to experience positive symptoms of psychosis such as auditory hallucinations and bizarre delusions". She has many of the characteristic negative symptoms of schizophrenia including; "social withdrawal, reduced motivation and emotional blunting", and had not been able to sustain employment since her initial diagnosis (years before) but had substantial support from her family.
14. Relevant to the issue of mental illness, Dr Eagle concluded that the accused had a chronic psychotic illness which was a "disease of the mind". She experienced disorganisation of thought processes, bizarre beliefs and perceptual disturbances as a result of her illness and these symptoms impact upon her ability to determine what is real and to think clearly and logically about actions. The doctor formed the view that the accused was experiencing a relapse of acute psychosis due to her illness at the time of the assault upon the complainant, the episode of psychosis resulting in disorganisation of thought processes, auditory hallucinations and bizarre delusions.
15. She was therefore experiencing a defect in reasoning as a result of a disease of the mind at the time of the alleged offence. She understood the nature and quality of her actions, there is no indication she did not have voluntary control of her actions, but in all the circumstances of the matter, there not being any clear precipitant or other explanation for the alleged offence, given that the incident was unexpected and out of character, noting her presentation of distress, rocking back and forth on a chair and inability to respond to questions appropriately at the time of her arrest, she was of the view that the accused was experiencing an episode of acute psychosis which prevented her from being able to reliably interpret reality, and that it was likely that she was behaving in response to a bizarre persecutory belief involving the complainant. Thus, she was unable to reason with any degree of calmness as to the moral wrongfulness of her actions at the time of the alleged offence. In other words, she did not know what she was doing was wrong.
16. Dr Eagle commented upon the issue of "Substance Use Disorder" involving methamphetamines. While she noted an inconsistency in the account given by the accused with "collateral information", some of which she summarised, she does not express an opinion as to its relevance to the offence with which I am now concerned.
17. Dr Furst's report is not as extensive although he has reviewed much of the same material as Dr Eagle. His account of the history provided by the accused, accords generally with the history obtained by Dr Eagle. He notes previous diagnoses of schizophrenia. He concluded that she had a chronic psychotic illness dating back to her mid-20s, characterised by persistent paranoid delusions, religiose delusions, mood disturbance, severe thought disorder and bizarre behaviour. After setting out the characteristics of schizophrenia, the extent of its incidence, and other matters relating to the illness, he concluded that on 18 July 2019, her behaviour towards Mr Kooper was in response to "delusional beliefs". He had a history from the accused that she believed her son's soul was "locked in hell" and that by doing what she did to Mr Kooper she was freeing her son from "perceived spiritual danger" and that her actions were "morally justified". He concluded that she was suffering from a defect of reason as a consequence of a disease of the mind in the form of schizophrenia and was at the relevant time unable to reason about the wrongfulness of actions "according to the standards of ordinary people".
18. As to Substance Use Disorder, whilst he acknowledges a diagnosis of that disorder from the history given, like Dr Eagle, he did not express any opinion that it is relevant to a consideration of the accused's criminal responsibility for the current matter.

Addresses

1. The Crown and the defence provided extensive addresses, assisting the Court with summaries of the prosecution evidence, identification of issues to be resolved, the legislative matters to be taken into account and what may be concluded by the court relevant to the legal issues for resolution.
2. The Crown's submissions note the agreement of the two doctors with the specific quotations from their respective reports. The Crown ultimately submits that the actions of the accused were voluntary actions and that in the circumstances the Court is not required to go further with regard to any proven intention. To the extent that prohibited drugs may have contributed to the actions of the accused's the Crown submits, by reference to the psychiatric evidence, that the court should nonetheless be satisfied that the underlying disease of the mind was present and active at the time of the alleged offending (see R v Kirkman [2019] NSW SC 1826). The Crown submits that the only verdict that the court can return is a special verdict of "not guilty on the grounds of mental illness" with particular submissions as to appropriate subsequent orders which I need not deal with at the moment.
3. As to the issue of fact finding in the circumstances of a case that turns upon whether the mental illness defence has been made out, counsel for the accused drew the court's attention to the decision of Hunt AJA in R v Minani [2005] NSWCCA 226 at [32], where his Honour noted by reference to the High Court judgment of Hawkins v The Queen (1994) 179 CLR 500, (at 510, 512-514, 517) that where specific intent is required to be proven, there are three questions: 1. Was it the act of the accused which caused the relevant wounding? 2. Was the accused criminally responsible for doing that act? 3. Was that act done with the specific intention required to be proved?
4. The High Court held in that judgment that the second question was resolved by finding that mental illness had been established and that the third question arose only if the second question is answered adversely to the accused. His Honour stated that where the defence of mental illness had been established it was unnecessary to make a finding in relation to the issue of specific intent.
5. It is submitted on behalf of the accused that in this matter the issue is whether the accused has satisfied the court on the balance of probabilities that at the time of committing the relevant acts (which are clearly established) that the accused was labouring under such a defect of reason, from a disease of the mind, as to not know the nature and quality of the act she was doing, or if she did know, then she did not know that what she was doing was wrong, citing M'Naghten's Case (1843) 8 ER 718. This is the relevant test in respect of establishing a mental illness defence (eg. The King v Porter (1933) 55 CLR 182). After surveying the psychiatric opinions which I have summarised in my own way above it is submitted that I should return the special verdict of "not guilty by reason of mental illness" (s.22(1)(b) of the Act ).

Consideration and conclusion

1. This is a matter where there is no dispute between the Crown and the defence as to the findings the court should make. Their respective positions are proper having regard to the evidence. I have no doubt that the accused shortly before 5:30am on 18 July 2019 inflicted three wounds upon the complainant as he was lying in her bed. She at the time was suffering a chronic mental illness which caused her to be in a psychotic state. She was a woman in her mid-30s who had suffered this mental illness for at least 10 years previously. She had no prior history of violence towards others and the conduct proven was entirely uncharacteristic.
2. Her presentation immediately after the events as shown by the "body cam" footage was that of a distressed person not able to coherently communicate entirely consistent with the assessment of her mental condition made respectively by the two psychiatrists. Her changed presentation later that day under sedation and then five days later after medical treatment when interviewed by police, reflects the extent of her disordered mind at the time of the alleged offending. The psychiatric opinions expressed by Dr Eagle and Dr Furst, are strongly supported by their clinical examinations, the medical and psychiatric history of the accused, the accused's presentation at the time of examination and their assessment and understanding of the extent to which anti-psychotic and other drugs had affected the accused up until the time of their respective examinations. The two experts were unanimous in their view as to the availability of a defence of mental illness on the same basis. That was, that the accused suffered a defect of reason because of a disease of the mind. As a result, at the time of the wounding of the complainant, the accused did not know what she was doing was wrong. These opinions must be accepted given that their opinions are overwhelmingly and unquestionably supported by prior diagnoses of the accused and the objective circumstances of the incident, such as the presentation of the accused at the time of the alleged offending and the context in which it occurred. The accused has established on balance the "defence".

Order

1. Pursuant to s.22(1)(b) Mental Health (Forensic Provisions) Act 1990 this Court finds the accused " not guilty on the ground of mental illness"

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: 25 January 2021