R v Cunningham

20 March 2016

1. Between 6.30am and 7.30am on 20 March 2016, the accused was seen by a neighbour, Annette Ottone, in Ronald Avenue Narraweena. Ms Ottone noticed that the accused kept looking down the street and was talking to herself. [6]
2. The accused attended the 8.00am service at St Johns Church in Narraweena. A parishioner, Matthew Aylward, observed a woman who I am satisfied he later identified as the accused, acting strangely. He described her as "fidgety and agitated". He said that she repeatedly creased and folded a church bulletin paper which she dropped and picked up. He saw the accused "clench her fist a few times and her knuckles would turn white". Mr Aylward said that at one point the accused passed wind, looked at the person behind her and made an exaggerated "gesture of embarrassment by placing her hand over her mouth". [7]
3. Sometime between 11.00am and 11.30am, a neighbour of the accused, Ms Hanson, saw the accused walking along her street in Narraweena. She described the accused as "generally unkempt", "dishevelled" and in a "bad state." Ms Hanson attempted to talk to the accused about the weather. She stated that the accused "started to ramble and go off on a tangent" and "seemed a bit confused". [8]
4. Ms Ottone saw the accused again between 12.00pm and 1.00pm on 20 March 2016. She saw accused talking to herself and then howl like a dog. [9]
5. Ms Ritchie visited Mr Lyford's unit late in the morning on 20 March 2011. She left in the early afternoon but stated that she would return at about 4.00pm to watch the afternoon football game.
6. At about 3.04pm, the accused boarded a bus on Macintosh Road Narraweena and travelled to a bus stop at the corner of Oliver Street and Wyadra Avenue, Freshwater. She exited the bus at 3.19pm. [10]
7. In his statement, Mr Lyford recalled that at around 3.45pm the accused knocked on the door of his unit. After answering his door Mr Lyford asked the accused what she was doing at his home. The accused stated that she had come to watch the football as the AVO had expired. Mr Lyford said, "Fuck off, I never want to see you again, I don't want to know you". He closed the door. [11]
8. Mr Panayiotis Menelaou lived in the same block of units as Mr Lyford. In his statement, Mr Menelaou said that "about 4pm" on 20 March 2016 he saw Ms Ritchie standing outside the front of her unit. He saw a woman kiss Ms Ritchie on the cheek, stroke her hair and then walk across the road to Mr Lyford's unit. He heard this woman talk to Mr Lyford and him yell "Fuck off I don't want to know you". [12] He saw this woman, whom he believed was the accused, walk back to Ms Ritchie's house and start talking to her again. He saw them walk inside her unit. Mr Menelaou's partner, Ms Brigid Sheedy, heard the exchange between the accused and Mr Lyford. She saw the accused leave the unit block and walk across Wyadra Avenue to Ms Ritchie's unit. [13] At this time the deceased was standing at her front door. After the accused walked up, she patted the deceased on her head and shoulder. Ms Sheedy observed Ms Ritchie and the accused talk for a few minutes and said they both entered Ms Ritchie's unit. [14]
9. Having regard to Mr Menelaou's evidence, I accept that, after the accused alighted from the bus in Freshwater, she first went to Ms Ritchie's unit, then walked across the road and knocked on Mr Lyford's door before returning to Ms Ritchie's unit.
10. Sometime around 4.00pm to 4.30pm, another resident of Ms Ritchie's unit block, Greg Rhodes, walked out of the exit of the block and looked into Ms Ritchie's unit. He saw Ms Ritchie and another woman, whom I infer was the accused, dancing. [15] Another resident, Keith Burndred, saw Ms Ritchie talking to a woman on her balcony at around 4.30pm. [16] Ms Ingher Ohlsson also lives in the same block of units. At around 4.45pm she saw a woman on the porch outside Ms Ritchie's unit who "was shaking a cloth, like she was trying to get rid of the dust on it". [17] I am satisfied that this woman was the accused.
11. At around 5.00pm to 5.30pm, Nicola Dickie who also lived in Ms Ritchie's unit block heard "May talking to another female" and then heard "the man upstairs talking" to Ms Ritchie. She described that man as "in his late 30's and of a darker racial appearance". [18]
12. At approximately 5.40pm, Paul Edgar returned to Ms Ritchie's unit block. He saw the door to Ms Ritchie's unit was open. Inside he saw Ms Ritchie standing up and a female crouching down on the floor near her. Mr Edgar said that Ms Ritchie was "just standing up next to her" and "she looked a bit worried". [19]
13. At about 6.10pm, after the football had finished, Mr Lyford walked to his balcony and looked towards Ms Ritchie's unit. He saw the accused and Ms Ritchie seated in the lounge room of Ms Ritchie's unit. Mr Lyford then rang Ms Ritchie's son, Kenneth Ritchie. Mr Lyford's statement suggests that Kenneth Ritchie answered the phone. Mr Lyford told Mr Ritchie that the accused was at his mother's house and suggested he ring his mother "and tell [the accused] to bugger off". [20] In an interview with the police on 4 April 2016, Mr Lyford agreed that he left a message for Mr Ritchie and that Mr Ritchie returned his call at around 7.45pm. [21] In his statement, Kenneth Ritchie's states that he received a missed call notification from Mr Lyford on his mobile phone at 6.44pm and that he rang back later before calling his mother at 7.55pm. [22] I accept Kenneth Ritchie's account in this respect.
14. Shortly after 6.45pm, one of Ms Ritchie's neighbours, Mr Graham Marr, left the unit block through the exit near the entrance to Ms Ritchie's unit. He saw Ms Ritchie on the balcony of her unit and the accused come out of the unit holding an empty wine glass in one hand and an empty bottle of wine in the other. In his statement, Mr Marr described the accused as dishevelled, "stumbling" and "making noises". Mr Marr saw Ms Ritchie roll her eyes and make a gesture with her hand which indicated to Mr Marr that Ms Ritchie thought that the accused was a mentally impaired. [23] Ms Ritchie repeated the gesture. Mr Marr formed the opinion that the accused was heavily intoxicated by something.
15. At about 7.00pm, Paul Edgar's partner, Nicola Edgar, heard Ms Ritchie talking to another female, whom I infer was the accused. In her statement she said the conversation "sounded normal" although the other female's speech was slurred. [24]
16. Sometime during this period, Ms Dickie heard Ms Ritchie say "That's not true, I'm single. Whoever said that is a liar." She then heard some noise and a women's voice scream. [25]
17. Consistent with the finding at [44], I am satisfied that Mr Kenneth Ritchie returned Mr Lyford's call sometime prior to 7.55pm. At 7.55pm, Mr Kenneth Ritchie twice called his mother's home phone but she did not answer. Mr Ritchie then called Mr Lyford and Mr Lyford agreed to go to Ms Ritchie's premises to check on her.
18. Mr Lyford had a key to Ms Ritchie's premises. He walked to her front door. In his statement Mr Lyford said he knocked on the door "and all of a sudden the lights went out". [26] He recalled knocking on the door saying "May its Bob are you alright love". He recalled that there was no answer "but I could hear noises from inside". In his interview on 4 April 2016, he stated that the noises "might've been a television". [27] Mr Lyford unlocked the door and entered. The front door leads immediately into the lounge room of the unit. After opening the door, Mr Lyford saw that the television was on in the lounge room and that the accused was standing about a meter and a half from him. He said to her, "What are you doing here?" The accused replied saying, "Get out or I'll call the police". Mr Lyford said, "By all means call the police cause if you don't I will." Mr Lyford saw blood on the floor. He said, "What's all the blood?" The accused said, "That's all from me." Mr Lyford recalled that the accused moved forward and started to push him back to the front door. He pushed past her and turned the lounge room light on. The accused immediately turned it off. Mr Lyford walked past the accused and turned the kitchen light on. Mr Lyford checked the bedrooms and the bathroom. [28] The accused remained in the lounge room. Mr Lyford said, "Where's May?" The accused said, "She got a bottle of wine and headed over to your place." Mr Lyford did not believe her.
19. At around 8.10pm, Mr Lyford rang the police on his mobile phone and asked them to attend. [29] The police officer who received the call recalled Mr Lyford stating that "Marita's here and she's going off" [30] and he could hear a female "in the background speaking". [31]
20. Mr Lyford observed the accused rummaging through some bags on the ground floor of the lounge room. He recalled that she "said something about needing to find her keys so that she could leave". Mr Lyford looked for Ms Ritchie in the bedrooms and bathroom but could not find her. After returning to the lounge room he checked Ms Ritchie's handbag but could not see her purse. Mr Lyford saw the accused walk out the front door. He followed her. As he did so, two police officers arrived. The officers recorded their arrival time as 8.17pm. Mr Lyford asked the officers to stop the accused as he believed she had taken the deceased's wallet. One of the officers, Constable Thompson, saw the accused quickly walking away from the scene. The officer said to her "Stop, it's the police come back here" twice. The accused kept walking. Constable Thompson then said, "Stop walking, don't make me run after you." The accused continued westbound and crossed the road heading towards Oliver Street. The other officer, Constable Sherman, called out to her to stop. [32] The officers stopped her on the northern footpath of Wyadra Avenue outside 21 Wyadra Avenue. The accused was carrying a number of carry bags and a jacket. The other officer, Constable Sherman, said to the accused, "Are you Marita". She said, "Yeah". Constable Sherman said, "Stop you have to wait a second so we can find out what is happening". The accused said, "Can't I just go." In his statement, Constable Sherman described the accused as appearing "nervous", "fidgeting with her belongings" and that when she spoke she "rambled and mumbled". [33] He observed blood on the blue top she was wearing.
21. Constable Thompson walked over to speak to My Lyford who was speaking to Kenneth Ritchie on the phone. Mr Lyford told Constable Thompson of his suspicion that the accused had taken Ms Ritchie's purse. While Constable Thompson was speaking to Mr Lyford, Constable Sherman attempted to speak to the accused. In his statement he described her as "dismissive and distant" to his questions, as not making a "lot of sense", as continuing to "ramble" and asking about leaving. [34]
22. Constable Thompson walked over the road to Constable Sherman and the accused. Constable Thompson said to the accused "Why are you here, do you have anything on you that belongs to May?" The accused replied "watching the Football". [35] Either Constable Thompson or Constable Sherman asked, "What is with all the blood on your shirt." The accused said, "I've got my period." Constable Thompson recalls asking her, "Where are you going?" and her replying "Home to Narraweena." [36] Constable Sherman recalls her being asked where she was from and her replying "Narraweena". [37] Nothing turns on this discrepancy. In his statement, Constable Thompson described the accused as "anxious and evasive" and that when she was asked questions "her tone of voice was quiet and sheepish".
23. In the meantime Mr Lyford re-entered Ms Ritchie's unit. He noticed that the lounge room was messy with newspapers and cushions spread everywhere. He tried to find the remote control for the television. He moved some newspapers on the floor and found Ms Ritchie's leg. She was covered in newspapers and cushions. He started chest compressions and called out to the police. Constable Thompson ran over to the unit and saw Ms Ritchie lying motionless on the floor. He observed that she was lying amongst newspapers, red and green shopping bags and some light coloured pillows, some of which were around her and some on her. He could see blood on some of the newspapers and on the carpet surrounding the Ms Ritchie. He could see blood coming from her right ear, a distinctive bruise on her forehead, blood over the top of her nose, blood around her mouth, and her hair appeared to be thick with blood. He saw a cut on the Ms Ritchie's right hand where the skin appeared to be peeled upwards from one of her knuckles to her wrist. [38] He ran to the doorway and told Constable Sherman to arrest the accused which he did. Constable Thompson then moved some of the "clutter from on top" of Mr Ritchie. In his statement he said Ms Ritchie was "warm to touch but was not conscious or breathing". He performed external cardiac compressions. Constable Sherman entered the unit to assist. In doing so, they moved Ms Ritchie's body "about 1 foot towards the centre of the room". [39]
24. Two ambulance officers arrived at 8.33pm. [40] They observed that Ms Ritchie was unconscious and not breathing. Another ambulance arrived shortly afterwards. They attempted to resuscitate Ms Ritchie but were unsuccessful. They informed the police that she was deceased.

Accused's Statements to Police Officers

1. After assisting Constable Thompson and after he had arrested the accused, Constable Sherman cautioned the accused. After doing so the accused said, "Yes, so I don't have to say anything." [41] Soon after other Acting Sergeant Williams approached the accused and said, "My name is Acting Sergeant Williams from Northern Beaches Police. You are under arrest for murder. You do not have to say or do anything if you do not want but whatever you say or do may be recorded and later used in evidence, do you understand this." The accused said, "Shit, really." [42] The accused was then conveyed to Manly police station.
2. The accused arrived at the Manly police station at around 10.00pm. Senior Constable MacKinnon met her in the charge room. When the accused was asked her last name she did not answer. Senior Constable MacKinnon asked her whether she had been arrested in the last 48 hours. He recalled the accused "mumbled something" and that she smelled of alcohol. He observed her eyes had a "glazed watery appearance". [43] When he asked her questions concerning her health, medical condition and mental state she "continued rambling and talking to herself" and "told stories about her son that had no beginning and sounded as though the time period she was talking about continually changed". [44] Senior Constable MacKinnon attempted to explain her rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") but concluded that she did not understand. He tried to explain her rights to her a number of times but when he asked her to repeat back his explanation she could not recall what he told her and instead told unrelated stories. [45]
3. Constable Cumming was on duty at Manly police station at this time. She noted that the accused "appeared disorientated and confused as to why she was in police custody". She recalled the accused's speech was slurred, that she asked "How did I arrive here" and instructions to her were repeated two or three times before the accused understood them. [46] Constable Cumming observed the accused in the dock. He said the accused was "pac[ing] around in circles with her hair placed over her face" and she "was unable to hold a conversation which made sense". Constable Cumming did not record the accused as smelling of alcohol. At some point, Constable Cumming and Senior Constable MacKinnon taped exhibit bags to the accused's hands to preserve forensic evidence.
4. Detective Senior Constable White then spoke to the accused. At one point he asked if there was a "local family member or friend" who the police could call. The accused responded "No. Is it raining? I have a hole in my roof of my house. Not a hole but water comes in and the bucket I have there will be overflowing? I need to go and fix the bucket". In his statement, Detective White described the accused's demeanour as "strange". He stated that the accused's "eyes were opened extremely wide as I spoke with her" and that "[s]he appeared very attentive to me asking questions however her answers made it appear that she wasn't listening or understanding what I was asking." She denied taking drugs or drinking alcohol. [47]
5. At about 1.10am on 21 March 2016, Senor Constable McKinnon again spoke to the accused. He stated that at this time the accused appeared to listen and understand. The accused was asked to summarise paragraphs of the document he had read concerning LEPRA. She was able to explain what she thought each paragraph meant. The accused signed the document at the appropriate section without it being pointed out by the officer. [48]
6. Shortly afterwards Detective Senior Constable Vickery spoke to the accused. He concluded that, "[t]he accused's eyes were wide open and her pupils were small. The accused's demeanour was not normal, her behaviour changed from erratic rambling conversation to calm." He could not smell alcohol on her breath. [49] He asked whether she remembered what she had been arrested for. She replied "yes" but did not state why. In his evidence Detective Vickery stated that the "accused started rambling, words which I didn't really understand" she "started to walk around the cell" and "was trying to talk over me". He described her mood was "erratic" and said that she was "raising and lowering her voice". Senior Constable Vickery asked the accused if she understood that she had been arrested for the murder of May Ritchie. The accused stopped talking and said, "What she's dead". [50]
7. At 3.00am on 21 March 2016, Detective Senior Constable Kylie Morris spoke to the accused about contacting members of her family. In her statement Detective Morris recorded that during this conversation "[t]he accused ... started talking about possums in her roof or something making noises in her roof and that she had not slept". Detective Morris noted that the accused's "words were jumbled and all over the place, nothing was making sense." [51]
8. Due to concerns about the accused's mental state and the need to obtain a support person, her interview was delayed. One officer, Detective Pollard, saw the accused at 10.20am on 21 March 2016. He attempted to explain to her the forensic procedure that the police wanted to undertake. He observed the accused to be "vacant and somewhat non understanding." [52]
9. At 11.10am, a solicitor and support person saw the accused. However the solicitor only provided advice in relation to the carrying out of forensic procedures by the police and not the proposal to interview her. At about 12.30pm, an electronically recorded interview with the accused in the presence of the support person commenced. At 1.26pm, the interview was suspended to enable the accused to obtain further legal advice. Shortly after the interview resumed the interviewing officer, Detective Sergeant Pooley, stopped the interview as he concluded that the accused did not understand the seriousness of the allegations against her. Detective Pooley was also concerned that the accused was either incapable of understanding her legal advice or had not received adequate legal advice. Although further brief questions were asked, the interview was concluded shortly thereafter. After the interview the accused was charged.
10. A video recording of the interview was played in open Court on 28 August 2017. The accused was calm during the interview. At times she appeared reasonably focused and was able to provide responsive answers although some of her answers were tangential. However, the accused's demeanour suggested that she did not understand the seriousness of the allegations against her or her predicament. At one point she stated that a detective told her that Ms Ritchie was dead but she "didn't know whether to believe it or not". [53] A number of answers confirmed her poor recollection of recent events. The accused stated that she slept late on 20 March 2017 and missed church [54] whereas an eye witness recalls her attending (see [33]).
11. The accused also stated that she alighted the bus in Wyadra Street as she was intending to walk to the beach. [55] She stated that Ms Ritchie waved to her [56] and said to her "There is a God, I'm May, remember me". [57] The accused stated that they talked about their children [58] and Ms Ritchie asked her to come in for a drink. [59] She recounted a discussion about Mr Lyford (referred to as "Big Bob") and another man (referred to as "Little Bob").
12. Blood and DNA samples were taken from the accused at around 5.25pm on 21 March 2016. [60]

Investigation and Post Mortem

1. Shortly after the police arrived, a crime scene was established at Ms Ritchie's unit. A walking stick was found near Ms Ritchie's body. An empty bottle of wine was located on the front patio. No other alcohol containers were found. One of the accused's bags retrieved from Ms Ritchie's unit contained swim wear. [61] There were numerous bloodstains on the carpet near and under Ms Ritchie's body. [62] Blood stains were found on the accused's clothes and hands. [63]
2. A post mortem examination of Ms Ritchie by a pathologist, Ms Rebecca Irvine, found that she suffered extensive blunt force injuries to the face and scalp. Some bruising was also present on the trunk, with multiple areas of subcutaneous haemorrhage on her back. Her upper extremities and hands showed multiple blunt force injuries which were consistent with defence-type injuries. There was evidence of soft tissue damage to the neck with a fracture to the hyoid bone, a horseshoe shaped bone in the neck. There was also a fracture of the "superior horns of the thyroid cartilage." The post mortem report also noted multiple rib fractures as well as a fracture of the sternum but accepted that they were consistent with the chest compressions that were performed on Ms Ritchie ([54]). [64] Ms Irvine concluded that the direct cause of death was asphyxia.
3. A blood sample taken from Ms Ritchie revealed a blood alcohol reading of 0.054. [65] The blood sample taken from the accused revealed no blood alcohol reading and a concentration of "tramadol" of less than 0.01 mg/L. [66] Tramadol is a synthetic opioid used for the treatment of moderate pain. [67] A pharmacologist opined that the accused's dosage was in the "normal therapeutic range" for the treatment of chronic pain. [68]
4. The accused's clothing was examined for blood and subjected to DNA testing. A mixed DNA profile was recovered from a swatch of bloodstain on the front of the black leggings worn by the accused at the time of her arrest, as well as her singlet. [69] The major component of the mixture had the same DNA profile as Ms Ritchie. [70] Ms Ritchie's DNA profile was also recovered on a swatch of bloodstain on the front right sleeve of the accused's jacket. [71]
5. A walking stick found in the vicinity of the deceased's body was seized. [72] It appeared to have blood stains. They were the subject of DNA testing. The relevant results were as follows: [73] a. A trace swab taken from the middle section returned a mixed DNA profile. Ms Ritchie could not be excluded as the major contributor and the accused could not be excluded as the minor contributor to the mixture; b. Ms Ritchie's DNA profile was recovered from a trace swab of the curved handle section; c. Ms Ritchie's DNA profile was recovered from a swab of blood stain marks on the underside of the curved handle section; d. A mixed DNA profile was recovered on a swab of blood stained partial fingerprints towards the end of the cane. The major component of the mixture has the same profile as Ms Ritchie.
6. A search warrant was executed at the accused's premises. The police seized a teddy bear with a knife stabbed into its neck. [74]

The Accused's Mental History

1. The above narrative of the events of 20 and 21 March 2016 includes material addressing the accused's mental state during that time. Both the Crown and Ms Rigg SC tendered other evidence addressing her mental state in the period prior 20 March 2011 and after her incarceration. This consisted of discharge summaries from hospitals for the period 2007 to 2013, [75] documents created by officers from Community Corrections to whom she was reporting in the period January 2016 to March 2016, [76] Justice Health records documenting her condition in custody after she was arrested, [77] a report from a mental health case worker who saw the accused in the weeks preceding Ms Ritchie's death [78] and statements from neighbours and police officers who interacted with her in that period. I will summarise the effect of that material. Unless otherwise stated, I am satisfied of the following matters.

Pre-20 March 2016

1. As stated, the accused was diagnosed as suffering from post-natal depression in 2007. She was admitted to Manly Hospital on 17 February 2007 and discharged on 8 March 2007. The discharge summary records her as "psychotic - markedly disorganised", "paranoid" in that she felt that she was being watched and persecuted by a well-known businessman and as experiencing "auditory hallucinations". [79]
2. The accused was involuntarily admitted to hospital again on 22 August 2008. The accused was found attempting to have a bath in a creek at Seaforth after her electricity was disconnected. She was not released until 3 December 2008. There was a further admission on 15 March 2013 after the accused called emergency services claiming to have been poisoned by a chicken stir fry. She was released on 10 May 2013. In each case the diagnosis was a relapse of a "schizoaffective disorder". [80] It is noteworthy that each period of admission was substantial. Other than her interactions with Mr Lyford in this period there is not much evidence of the accused's condition between admissions. A statement from her sister indicates that on her release from hospital she received "daily counselling and had appointments with psychiatrists and welfare workers". [81]
3. In his report of 20 February 2017, Dr Ellis reported that sometime around Christmas 2015 the accused stopped taking medication for her condition "as she did not want to mix it with alcohol". [82] Although I treat the histories given by the accused to the psychiatrists with caution, I accept this as reasonably accurate as it is consistent with what she told a Community Corrections officer on 19 January 2016 [83] and her subsequent behaviour.
4. In her witness statement, one of the accused's neighbours, Paula Brutnell, described the accused's behaviour worsening over time. She recalls her arguing with herself in her backyard, making noises that sounded like smashing pot plants and slamming various doors and garbage bin tops. Ms Brutnell stated that on a number of occasions in the months prior to 20 March 2016, she saw the accused on the footpath acting like a cheer leader, holding and waving tea towels around as pom poms. She also recalled that on some of these occasions the accused lifted her top to expose her breasts or she lifted her skirt to reveal her vagina or bottom to a passing car. [84] Ms Brutnell stated that the police were called to the accused's premises during January 2016 because she was yelling at the neighbour's property and throwing rubbish over a fence. [85]
5. Another neighbour, Ms Ezzat Shojaidini, stated that the accused's behaviour was "constantly up and down", that she "always seemed drunk" and was "yelling out loudly". She stated that the accused's behaviour was "more crazy" in the month prior to Ms Ritchie's death [86] and on one occasion she abused her and her husband telling them they "should go back to our own country". [87]
6. Ms Eleanor Hanson works as a carer for a couple who live near the accused and are wheelchair bound. She has observed the accused in the neighbourhood singing to herself and exposing herself to passing cars. Ms Hanson stated that in the month prior to Ms Ritchie's death, she observed a "decline" in the accused's mood, and that she started to "ramble more" and engaged in odd behaviour such as knocking on her client's door and showing her rosary beads or handing her car keys over without explanation. On one occasion, the accused complained to Ms Hanson that one of her clients tried to run her over in a car and pointed at the vehicle they had supposedly driven. In fact, the car was owned by Ms Hanson. Her clients do not own a car and cannot drive. [88]
7. On 27 January 2016, a Community Corrections officer rang the accused. She recorded that the accused "was not making much sense" and "had a very bad past couple of days". [89] The accused attended an interview with the officer on 2 February 2016. The officer recorded that the accused was "very frazzled, confused and was jumping from topic to topic" and was "very paranoid and adamant that the neighbours are breaking into her house". [90] The officer spoke to and met the accused a number of times over the next few days and made similar observations. [91] This included a visit to the accused's residence which was observed to be chaotic. The officer recalled that during the visit, the accused "became quite aggressive and was yelling that there was someone in the roof". [92] For the sake of completeness, I note that the Community Corrections officer made numerous calls to various service providers seeking advice and assistance.
8. On 10 February 2016, the accused reported to the Community Corrections officer. The accused was reported as "present[ing] a lot better than last week but was still very talkative and would ramble". [93] They discussed admitting the accused to hospital. The accused is recorded as "begg[ing] not to go back". [94]
9. As part of a mental health plan that was arranged for the accused, the accused attended an appointment with a mental health worker on 12 February 2016 for the purpose of "sort[ing] out [her] mental health and stress problems with an ultimate goal of [obtaining] easier access to [her] son". [95]
10. The accused met with a Community Corrections officer on 3 March 2016. The officer noted that the accused, "was unwell and very chaotic." The accused told the officer that someone was stealing from her accounts. The officer recorded that the accused was, "very paranoid again, stated she has locked all the doors and windows in the house". She also recorded that "Marita states that she has a script for her Thyroxine and also Tramadol for pain relief but has no Epilim or anti-psychotic medication ...". Epilim is a mood stabiliser. As noted, the analysis of the blood sample taken from the accused after the death of Ms Ritchie detected Tramadol but no Epilim. [96]
11. On 8 March 2016, the accused attended a session with her mental health worker. The case worker recorded that the accused "needs review by her psychiatrist and possibly involuntary treatment to stabilise her condition". [97]
12. At about 11.10am on Wednesday 9 March 2016, police spoke to the accused near the Ivanhoe Hotel in The Corso, Manly after she bashed her hands on the window of a police van that was transporting an associate of hers to the police station. [98] They observed her to be intoxicated. They issued her a "move on order". However, they were advised by a member of the public that she was being abusive and then saw her chase and abuse a female pedestrian. [99] They approached her. The accused abused them and was arrested. [100]
13. A Catholic priest, Tiziano Torresan, recalled that a "few days" prior to 20 March 2016 the accused was seen in a state of confusion, half dressed and lying on the grass in front of St Johns Catholic Church in Waratah Parade, Narraweena. Father Torresan recalled that on another occasion she was late attending a service. When she arrived, she began shouting and was escorted out of the church. [101]
14. The accused missed an appointment with her mental health case worker on 16 March 2016. On the evening of 16 March 2016, one of the accused's neighbours, Jamie Zonno, observed the accused hitting his car with a cricket bat. He saw the accused enter the passenger side of the car and reach over to the driver's side. The police attended. They formed the opinion that the accused was moderately intoxicated. She told the police that the car belonged to "Nicholas Read". After police told the accused that they would take out a Personal Violence Order against her and that she would have to come to the police station, the accused said, "Okay, but can I feed my rat first and can you come inside and get the possums and Nicholas Read out of the roof, they shouldn't be there." The attending police officer described the accused as "continuously ramb[ling]" about this topic during their conversation with her. [102]
15. On the afternoon of Friday 18 March 2016, the accused rang Ms Shojaidini's door bell. Ms Shojaidini opened the front door but left the security door locked. The accused was holding a cricket bat and said to Ms Shojaidini in an angry voice "I am sick of your dog". [103]
16. About mid-morning on 19 March 2016, the accused spoke to a neighbour Mr John Smith. When he complained about how she had spoken to him previously the accused said, "Oh, I've been off my meds and someone had been getting to my meds. Someone is living in my roof and no one wants to believe me." Mr Smith had previously observed the accused talking to herself and her yelling and screaming with no one around. [104]

Post-21 March 2016

1. On 25 March 2016, the accused was admitted to Silverwater Women's Correctional Centre. Her behaviour during the "screening process" was reported to be "bizarre and manic". It was concluded that the accused did not "understand the seriousness of her charges". [105] The clinical notes from the next day report her as "happy" and "confused". [106] A review of the accused on 30 March 2016 described her as "thought disordered", engaging in "intense staring" and exhibiting "generally bizarre behaviour". [107]
2. Similar observations were recorded on an almost daily basis between 1 April 2016 and 13 April 2016 [108] even though the accused was taking antipsychotic medication. The entry for 13 April 2016 records the accused suffering from "persecutory delusions which seem to be keeping her up all night" and that these delusions incorporated "doctors and nurses as well as [Corrective Services] staff". [109]
3. Reviews conducted of the accused on 22 April 2016, 27 April 2016 and 23 May 2016, also recorded the accused as suffering from persecutory ideations and manic symptoms despite continual increases in her medication. [110]
4. By 3 June 2016, there was some improvement in the accused's condition. A psychiatrist recorded that her "speech [was] less pressured as compared to last review" but she still showed "poor insight". [111] There was further progress although on 20 June 2016 she was recorded as being "thought disordered and tangential". [112] A review on 29 June 2016 concluded that she "remain[ed in an] elated mood with significant thought disorder". [113]
5. A review of the accused on 31 July 2016 recorded the accused denying having any psychotic symptoms or perceptual disturbances. [114] It concluded that her mental state was improving although she was presenting with "depressive symptoms". Subsequent observations were broadly consistent with these entries although on 19 September 2016 it was reported that the accused was "thought disordered", "difficult to redirect or interrupt", "occasionally feel[ing] paranoid" but denying having any auditory hallucinations. [115]

Dr Ellis

1. Ms Rigg SC tendered three reports from Dr Ellis. The first two, dated 6 August 2016 [116] and 20 November 2016 [117] respectively, addressed whether the accused was fit to be tried. The third report, dated 20 February 2017, [118] addressed the defences of mental illness and substantial impairment. Dr Ellis conducted clinical interviews with the accused on 17 June 2016, 15 November 2016 and 24 January 2017.
2. In his first two reports, Dr Ellis diagnosed the accused as having a schizoaffective disorder and a substance use disorder. These reports contain a discussion of the accused's personal and psychiatric history consistent with the above. In addition, in his first report Dr Ellis noted that the accused stated she occasionally used cannabis until December 2015 although an entry in the medical records noted "daily use of 2-3 cones". [119]
3. Dr Ellis' third report contains a recitation the accused's account of the events of 20 March 2016. Dr Ellis noted that the accused reported that by March 2016 she was not taking her medication regularly and had developed the belief that there was a person in her roof. The accused told Dr Ellis that she could hear music and detected the smell of fried chicken coming from her roof. The accused stated that in the weeks leading up to 20 March 2016, she was not sleeping and was "hearing voices that sound like ... neighbours saying 'ice junkie' and 'booze slut'". [120] The accused reported believing that the "psychiatric patients in Manly" were "ganging up" on her and that Mr Lyford was "follow[ing] her around, spy[ing] on her with a telescope and wanted her dead". The accused told Dr Ellis that she placed the knife in the teddy bear referred to above at [73] to hide it in case she needed to protect herself.
4. The accused told Dr Ellis that could not remember what she did on the morning of 20 March 2016 although she remembered catching a bus to Ms Ritchie's apartment. The accused said that she took a bottle of wine because she had "missed [Ms Ritchie's] birthday, wanted to see her and that she was also scared to be alone". She stated that she was welcomed by Ms Ritchie and she went to see Mr Lyford to tell him the "plan for watching the football in the afternoon was off". [121] The accused told Dr Ellis that on returning to Ms Ritchie's apartment that she spilled a drink, she fell asleep when she was cleaning Ms Ritchie's toilet, she remembers trying to tidy the lounge room, that there were visitors to the apartment who left and that she danced with Ms Ritchie during which they fell over.
5. Dr Ellis reported the following as the accused's account from this point: [122] "She said that the victim then 'went off at me'. She said that the victim accused her of not being a good mother. She did not think that the victim was a part of the conspiracy at this time, but was angry with the victim for criticising her parenting. She did not think that the victim wanted to harm her at this point. She says at some point the victim became very noisy and argumentative. She said that she remembers trying to keep the victim quiet. She said that she thought she heard voices from outside the unit. She thought intruders related to the conspiracy or Mr Lyford were behind these noises. She says at this time she was very frightened and wanted to get away from either the conspirators or Mr Lyford. She was frightened that noise from the victim would attract these intruders. Later, when the victim continued to be argumentative and noisy she thought that the victim might have been part of the conspiracy and was trying to attract them into the house in order to have her harmed. She says that she remembers using a walking stick to hold the victim back and pulling a cushion over her head to keep her quiet. She remembers the victim falling to the floor and hitting her head during the struggle. She thinks the walking stick would have struck the victim's head during the struggle. She said that she did not realise that the victim had died, but did think that she might have been knocked out or that maybe made [sic] was drunk and asleep."
6. Dr Ellis recorded that the accused denied she wanted to kill Ms Ritchie but stated that "she did want to keep her quiet, as she believed noisy behaviour was bringing attention to her being in the flat and exposing her to danger". [123]
7. In his third report, Dr Ellis maintained that the diagnosis of schizoaffective disorder and substance use disorder. He attributed the improvement in the accused's presentation since her arrest to her "sustained compliance with psychiatric medications". [124]
8. Dr Ellis then addressed the accused's mental state at the time Ms Ritchie was killed. Dr Ellis noted that there were a "number of reports" from neighbours and her parole officer concerned about her "erratic behaviour". Given the result of the blood test noted at [70], Dr Ellis concluded that "her behaviour cannot be explained by the effects of drug use". He noted the accused's description of experiencing hallucinations and persecutory delusions. Dr Ellis then referred to the accused's account of the time of Ms Ritchie's death which he described as "hallucinations thematically related to the [accused's] delusions, hearing people outside the victim's flat and assuming they were conspirators or her ex-partner coming to physically harm her or kill her". Dr Ellis noted that the accused "began to suspect that [Ms Ritchie] was part of the conspiracy" but noted that the accused "reported that she struggled with [Ms Ritchie] using a walking stick and pillows to keep the victim quiet, rather than in response to the victim being found". Dr Ellis noted that her covering Ms Ritchie in "pillows and newspapers" appears to have been an attempt to "muffle sound" and that was "consistent with her turning off the lights in the apartment, in an attempt to not be found". [125]
9. Dr Ellis' reasoning and conclusion on mental illness was as follows: [126] "It is likely at the time that she was experiencing significant thought disorder, with disorganisation of thought process and speech. This was present at my initial review, and her presentation in the police interview indicates perplexity and disorganised thought process. Although it is likely that she knew that struggling with an elderly person might cause them harm, therefore knowing the nature and quality of the act it is not likely that she was able to reflect with composure on this. She held a number of emotionally salient delusions that led to a significant degree of fear and in combination with thought disorder it is unlikely that she was able to consider her actions in a composed manner. It is likely that she did not think that her actions were morally wrong at the time. Her express aim was to keep the victim quiet so that perceived persecutors outside the house would not notice them. She felt that she had been under threat for some time and keeping the victim quiet would be a form of self-defence. She does report at some point thinking that the victim may have been part of the conspiracy and deliberately trying to attract attackers in. On balance it is likely that a court could find the defence of mental illness open to her." (emphasis added)
10. In cross-examination Dr Ellis expanded upon this conclusion when he was questioned about the accused's actions in covering Ms Ritchie's body with pillows and newspapers: [127] "I think that the behaviour in positioning the victim and covering them with pillows and newspaper is more likely due to disorganised behaviour as part of a mental illness indicating that there's not reflection and composure about the actions. I think there is some sense of wrongfulness comes into that in terms of covering up a body, but it's the ability to think about that with a degree of sense and composure in which I think that the knowledge of wrongfulness is impaired." (emphasis added)
11. This aspect of Dr Ellis' evidence reflects the discussion in Stapleton of the second limb of mental illness noted above (at [23] to [24]). In re-examination Dr Ellis confirmed that the reference to the accused acknowledging the wrongfulness of her actions was a reference to "having done something against the law" and that his opinion "is that the delusions would likely have impacted on her understanding of moral wrongfulness and that the disturbance of mood and thought disorder would likely have impacted on her ability to reason with composure about [her] actions". [128] Further aspects of Dr Ellis' oral evidence are addressed below.
12. In relation to substantial impairment, Dr Ellis stated that the observations of others including parole and correctional officers as well as her interactions with police confirmed that her "fundamental mental processes were impaired" at the time of Ms Ritchie's death. Dr Ellis concluded that it was likely that the accused's understanding of events "was clouded by delusional beliefs" and that her "judgment around her actions and the ability to control impulses was similarly impaired". [129]

Professor Greenberg

1. Reports from Professor Greenberg dated 3 May 2017 and 16 August 2017 were tendered by the Crown Prosecutor. [130] Professor Greenberg interviewed the accused on 19 April 2017.
2. Professor Greenberg's first report contains a lengthy analysis of the accused's personal and psychiatric history which is broadly consistent with that of Dr Ellis and what is set out above. His report also includes a lengthy section addressing the accused's account of the killing of Ms Ritchie. He described her as having given a "disjointed poorly sequential account". [131] Professor Greenberg noted that he had to continually refocus the accused when attempting to elicit her version of events. Dr Greenberg records the accused stating that on 20 March 2016 she went to Ms Ritchie's apartment to celebrate Ms Ritchie's birthday and took "chocolates, lollies and a bottle of wine". He recounts the accused stating that by the time she arrived it was wet so she changed her clothes and that she had brought swimwear because she was intending to go to the beach if Ms Ritchie did not want to see her. Later during the session, the accused also told Professor Greenberg that she had been to Mr Lyford's apartment who had been aggressive to her and told her to "Fuck off" and "what are you doing here". [132] She also told Professor Greenberg that a "negro guy" had come to Ms Ritchie's apartment door. [133]
3. Professor Greenberg recorded the accused stating that she fell asleep in Ms Ritchie's bathroom, that she and Ms Ritchie danced together and sang Scottish songs and during the dancing they fell and the accused hit her head but Ms Ritchie said she was fine. Professor Greenberg's report then states: [134] "She claims that she and Ms Ritchie then had an argument and Ms Ritchie yelled at her in an aggressive manner. She has limited recall about the content of the argument but recalls Ms Ritchie saying to her that she was not being a good mother. She claims Ms Ritchie was trying to make her fight but she didn't want to fight. She claims Ms Ritchie attempted to strike her with a walking stick and they struggled. She then claims she then has no memory until she next recalls that at the time she was feeling afraid that Mr Lyford would over to Ms Ritchie's apartment…. [The accused] claims that she didn't believe Ms Ritchie was dead. She claims she recalls turning off the lights because the phone rang and she … wanted him (Mr Lyford) to think that they were not there in the flat. She claims that she was frightened of him because he yelled at her to fuck off earlier that day. [The accused] reports that Mr Lyford then came into the apartment and then [called] the police. She states that she scrambled to get her stuff and to get away from him. When she went outside the police arrested her for the alleged offence. She claims that she does not remember asphyxiating Ms Ritchie. … On questioning, [the accused] claims that she put a hand over Ms Ritchie' mouth because she [wanted] to keep [her] quiet. I questioned [the accused] why she was attempting to leave the scene of the alleged offence after the police attempted to stop her leaving. She claims that she wanted to get away from Mr Lyford and was scared. She claims that she does not remember the police repeatedly telling her to stop walking away but then [stated] 'unless I was drunk'."
4. Consistent with Dr Elllis, Professor Greenberg diagnosed the accused as suffering from a chronic schizoaffective disorder, alcohol use disorder and a history of polysubstance use. [135] Professor Greenberg then addressed the accused's mental state at the time of the alleged offence. It is important to note that in doing so Professor Greenberg set out in detail the evidence noted above concerning the accused's behaviour from January 2016 up to the morning of 20 March 2016 and then after her arrest. [136] Professor Greenberg concluded that the accused was "suffering from a disease of her mind at the time of the alleged offence". [137] He also concluded that alcohol was "likely a disinhibiting factor in her deteriorated mental state at the time of the alleged offence, however it was not the primary and most significant factor in her underlying defect of reason" that being her disease of the mind. [138]
5. Professor Greenberg's conclusion on mental illness and part of the reasoning in support of that conclusion was as follows: [139] "I'm of the opinion that on balance, Ms Cunningham did not know her actions were morally wrong at the time of the alleged offence. She was labouring under a defect of reason caused by her disease [of] the mind where she had paranoid delusions and auditory hallucinations. She reportedly felt fearful, anxious and in fear … for her safety. Her thoughts were likely disordered at that time. Her use of alcohol was likely and [sic] exacerbating factor in her deteriorated mental state. She believed that there were people, including people in her roof, her neighbours, and other unknown persons [who] were trying to harm her at that time period. Ms Cunningham gives a limited account of her thoughts and beliefs at that time. One possible hypothesis would be that the telephone call and the knock on the door led to her being in a heightened state of psychotic anxiety where she struggled with the deceased. She claims was trying to strike with walking stick and she things [sic] she may have put her hand over the deceased's mouth to keep her quiet. She also claimed that she initially switched off the lights to pretend that there was no one at home because she was in a state of (psychotic) fear. I am therefore of the opinion that on balance, [she] has a defence of mental illness available to her." (emphasis added)
6. Professor Greenberg then stated that for "similar reasons" the accused was suffering from a relevant form of substantial impairment. Professor Greenberg concluded that the accused had the capacity to understand events and judge whether her actions were legally wrong but concluded that her ability to judge whether her actions were morally wrong or to control herself were substantially impaired.
7. Professor Greenberg's second report addressed four specific questions which reflected the submissions put by the Crown Prosecutor. The first question was to what extent his opinion in his first report was "based upon the history provided by the accused?" In response, Professor Greenberg acknowledged that the accused was a poor historian. Nevertheless, he stated that he "gave some weight to her self-report that she was likely suffering from acute paranoid delusions and hallucinations at the time of the alleged offence". [140] However, he stated he gave "considerable weight" to the reports of her condition and behaviour in the weeks prior to 20 March 2016 and the immediate aftermath of Ms Ritchie's death. Professor Greenberg noted that the accused provided "slightly different" information to Dr Ellis about the events of 20 March 2016. He stated that "we may never know her true rationale and reasoning for her alleged co-offending" but "her poor ability to give a coherent sequential account of herself at the time of the alleged offence is part and parcel of her chronic mental illness". [141]
8. The second question posed of Professor Greenberg was, if the accused's explanation for the offence was rejected, would that affect his opinion in relation to mental illness and substantial impairment? Professor Greenberg stated that he would be willing to review his opinion if the accused's explanation was rejected but added that he hoped the Court "will consider the other supporting materials which indicate that [the accused] was acutely unwell with her mental illness at the time of the alleged offence and her impaired ability to give a logical sequential account of herself at the time of the alleged offence". [142]
9. The third question posed of Professor Greenberg was whether he took into account the "obvious differences in ... [histories] and evidence of the extremely savage attack inflicted on the victim which must have involved blows"? Professor Greenberg answered "yes".
10. The fourth question posed of Professor Greenberg concerned the "one possible hypothesis" referred to in the extract in [112] above and asked whether it was "possible that there are other scenarios consistent with the fact that she did not know the nature and quality of her actions and did not know that her actions were morally wrong?" Professor Greenberg stated that he was not suggesting that there was "only one possible hypothesis" and accepted that there were other scenarios including "that she did know the nature and quality of her actions and she did know they were legally and morally wrong." [143] Professor Greenberg outlined various such scenarios but reiterated that "on balance I was [of] the view that the most likely scenario was the hypothesis" and "on balance … her acute mental illness was a highly significant factor in her alleged offending behaviour". In his oral evidence, Professor Greenberg confirmed that his opinion about the accused's mental illness defence was not premised on the hypothesis being correct but instead that was one possibility consistent with that opinion and Dr Ellis' was another. [144]

Did the Accused Kill Ms Ritchie?

1. Consistent with the analysis in [13], the first issue that arises is whether the Crown has proved beyond reasonable doubt that it was a deliberate act or omission of the accused that caused Ms Ritchie's death (Hawkins at 517; Minani at [32]). The Crown Prosecutor contended that given: that the accused was the only person at Ms Ritchie's unit at the relevant time; Ms Ritchie's frail physical condition; that she had Ms Ritchie's blood on her shirt and the other forensic evidence, that the inference was overwhelming that it was an intentional and determined act by the accused that killed Ms Ritchie. [145] The Crown Prosecutor contended that the prosecution did not have to establish the "precise mechanism of [Ms Ritchie's killing] or the precise circumstances" in which she died nor the accused's motive or reason for killing Ms Ritchie. [146] Ms Rigg SC did not dispute that it was an act of the accused which caused the death of Ms Ritchie. [147]
2. I accept the Crown's submission. The forensic evidence summarised above reveals that Ms Ritchie was beaten most probably with the walking stick recovered from the scene and otherwise with the assailant's hands. The cause of Ms Ritchie's death was by asphyxiation which occurred either from strangling by hand or being smothered with a pillow or a combination of both. The evidence of Ms Ritchie's neighbours, Mr Lyford and Kenneth Ritchie narrow the time in which Ms Ritchie was killed in her flat to sometime between 7.00pm and 7.55pm. The evidence points to only two people being present within the unit in that period namely Ms Ritchie and the accused. The presence of Ms Ritchie's blood on the accused's shirt and jacket points strongly to her being the attacker. Even if no weight is placed on the accused's admission of a scuffle to the psychiatrists and her alleged lies, the only rational inference in the circumstances is that it was the accused's deliberate act that caused Ms Ritchie's death. That conclusion is only strengthened when regard is had to the accounts given by the accused to Dr Ellis and Professor Greenberg noted above (at [100] and [110]).
3. Further, in light of the forensic evidence I am satisfied beyond reasonable doubt that the accused's attack on Ms Ritchie was a severe one. She was a frail 81-year-old woman. The accused was much stronger than Ms Ritchie. There are numerous bruises on Ms Ritchie's body many of which were most likely administered by hitting her with a walking stick. The damage to her neck that occurred during her asphyxiation was significant. This was a brutal act committed on a very vulnerable person.
4. Given its potential significance to the next issue, I also record that I am satisfied beyond reasonable doubt that the accused had already killed Ms Ritchie by the time Mr Lyford knocked on her front door following his telephone call with Kenneth Ritchie (see [49]). The time between his knocking on the door and entering the unit was too short for the accused to have asphyxiated Ms Ritchie and covered up her body with newspapers and pillows.

Is the Accused Not Guilty by Reason of Mental Illness?

1. As stated the accused carries the onus of proof that she is not guilty by reason of mental illness. The standard of proof is to the balance of probabilities (Evidence Act, s 141(2)). This has been described as an "undemanding standard" (see for example Moukhayber v Camden Timber & Hardware Co Pty Ltd [2002] NSWCA 58 at [23] per Heydon J) only requiring a "preponderance" of evidence. To meet the standard the Court must "feel an actual persuasion" of the relevant fact's occurrence before it is established, and that cannot be reached by a "mere mechanical comparison of probabilities [independent] of any belief in its reality" (Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361 per Dixon J). Nevertheless, it seems that probabilistic reasoning can lead to a Court being actually persuaded of the relevant fact (Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [34] to [37] per French CJ, Gummow, Crennan and Bell JJ).
2. In her written submissions, Ms Rigg SC pointed to the evidence concerning the accused's state of mind both before and after her arrest. It was contended that this material suggested that there were "very many instances where the accused was rambling, tangential, confused and apparently delusional where there was no indication of intoxication at all". [148] Ms Rigg SC contended that the evidence was "unanimous that the accused suffers from a disease of the mind, namely schizoaffective disorder" and that at the time Ms Ritchie was killed the accused "was labouring under a defect of reason due to this disease of the mind". [149] Ms Rigg SC relied on the opinions of both psychiatrists to the effect that the accused did not know her actions were wrong in the relevant sense at the time Ms Ritchie was killed.
3. In his submissions, the Crown Prosecutor accepted that the accused suffered from a mental impairment. However, he submitted that the Court should find that the accused had not discharged her onus of proving that it was relevantly operative at the time she killed Ms Ritchie. [150] The Crown Prosecutor submitted that the Court should not accept the opinion of Professor Greenberg and Dr Ellis that the accused was affected by a mental illness when she killed Ms Ritchie for three related reasons.
4. The first was that each of the psychiatrists' opinions was said to be dependent on a history obtained from the accused and that history was demonstrably unreliable. [151] The Crown Prosecutor contended that both psychiatrists recorded the accused stating that she put her hand over Ms Ritchie's mouth to keep her quiet whereas the evidence suggests (and I have found) that Ms Ritchie was dead prior to Mr Lyford knocking on the door. The Crown Prosecutor also referred to the differences in the accounts given to each of the psychiatrists. Thus, Professor Greenberg records the accused stating that she went to Ms Ritchie's house to celebrate her birthday whereas Dr Ellis recorded the accused stating she went to the accused's unit because she had missed her birthday. Dr Ellis recorded the accused stating that she was fearful of a conspiracy involving others whereas the account given to Professor Greenberg involves a conflict between the accused and Ms Ritchie (see [100] and [110]). [152]
5. The second reason given by the Crown Prosecutor for rejecting the psychiatrists' opinions was that the accused engaged in a number of acts at the scene of Ms Ritchie's killing that the Crown contended do not conform with the history given to the psychiatrists and with which the psychiatrists did not engage. [153] In particular, the Crown Prosecutor pointed to the accused's actions in covering up Ms Ritchie's body, [154] turning off the light after Mr Lyford knocked on the door, [155] confronting Mr Lyford when he entered and pushing him, [156] lying to Mr Lyford and the police that the blood on the floor was her blood [157] and lying to Mr Lyford when stating that Ms Ritchie was walking to his place with a bottle of wine. [158]
6. The third reason given by the Crown Prosecutor was that the accused did not make any reference to her delusional beliefs in the conversations she had with police in the period immediately after the killing of Ms Ritchie. The Crown Prosecutor noted that, with a number of the instances of anti-social behaviour engaged in by the accused prior to 20 March 2016, the accused made reference to her conspiratorial delusions. For example, when she hit her neighbour's car on 16 March 2016 the accused made reference to the people living in the roof of her house (see [88]). The Crown Prosecutor noted that there were no such statements made by the accused until around 3.00am on 21 March 2016 when she made reference to "noises in her roof" when speaking to Detective Morris (see [62]). [159]
7. Consistent with his obligations, the Crown Prosecutor took up these points with both Dr Ellis and Professor Greenberg. I will address each in turn.

The Accused is an Unreliable Historian

1. The Crown's submission on the first point overstates the significance attached by each of Dr Ellis and Professor Greenberg to so much of the accused's account that could not be confirmed by other evidence.
2. Some aspects of the accused's account to each psychiatrist up to the time of the killing of Ms Ritchie in fact reflects the evidence from other sources. Thus, for example, after she alighted at Narraweena the accused knocked on the door of Ms Ritchie's unit before she went to see Mr Lyford ([40]). The accused did have some ill-formed plan to go to the beach as a bag with her swimwear was recovered from Ms Ritchie's unit. Her recollection that a "negro guy" visited the unit finds some support in Ms Dickie's evidence ([42]). Her recollection of dancing with Ms Ritchie is supported by Mr Rhodes' evidence. This evidence, and the other observations of the neighbours, is significant at least to the extent that they negate any suggestion that the accused went to Ms Ritchie's unit with any thoughts of harming her or had any adverse predisposition towards Ms Ritchie.
3. Nevertheless, the Crown's contention that the accused's version of events surrounding Ms Ritchie's killing is inherently unreliable is correct. I would not be persuaded to accept any psychiatric opinion that solely or largely depended upon an acceptance of so much of her version of events that was unsupported by other evidence. However, the opinions of Dr Ellis and Professor Greenberg are not so dependent.
4. In his oral evidence Dr Ellis repeatedly emphasised that his opinion was largely dependent upon the information he received concerning the accused's behaviour and condition in the time leading up to the death of Ms Ritchie and afterwards. [160]
5. Dr Ellis accepted that there were significant inconsistencies between the accused's account of the relevant events and what was revealed by the post mortem of Ms Ritchie [161] such that he could not rely on her account of "specific thoughts at very specific times associated with specific actions". [162] However, he considered that the evidence of her mental condition both before and after the event meant that you could draw "conclusions about her mental state during the period of time in the flat" with Ms Ritchie. [163] According to Dr Ellis, the "nature of delusions are such that they tend to remain in, while they may wax and wane a little, they tend to be relatively fixed beliefs that persist". The result is that if "she's talking about about those kinds of belief before the offence and after the offence it is likely that they were present throughout it". [164] Hence, while Dr Ellis accepted that there were differences between the account given to him by the accused including the nature of the delusions she suffered and those given to Professor Greenberg, [165] he was nevertheless satisfied that there was: [166] "…sufficient information to consider that her mental state was affected by delusions and hallucinations and thought disorder at the time of the killing, based more so than her accounts ‑ on accounts of her behaviour beforehand and afterwards, but her account of her behaviour during the time of the killing, while it is incomplete and while it has inconsistencies, I think it is sufficiently consistent with the accounts of her behaviour beforehand and afterwards to conclude that she was suffering from a mental illness at the time."
6. In other words, according to Dr Ellis, while the accused's account of the specific delusion that she was operating under is unreliable, a conclusion that she was relevantly affected by delusions and her impaired mental functioning can still be drawn.
7. As explained above, Professor Greenberg's second report specifically addressed questions directed to the extent to which his opinion was dependent upon the accused's version of events. As noted, in his oral evidence Professor Greenberg stated that his opinion was not premised upon an acceptance of the "hypothesis" referred to in the extract at [112]. Like Dr Ellis, in his oral evidence Professor Greenberg emphasised that the material showed that throughout January to March 2016 the accused's mental state was deteriorating and she was "presenting with psychotic paranoia" and that after her arrest she was in a "hypomanic or manic state". [167] Professor Greenberg described the weight he attributed to her account as follows: [168] "I gave some weight to what she was saying. There were similarities with what she was saying and some of the evidence in the brief, but obviously there were discrepancies. On balance though, and this is on balance rather than a strong firm ‑ there wasn't any witnesses ‑ but on balance, I was of the opinion that the accused was acutely unwell at the time, that she was likely in a manic state and irritable, angry and paranoid, and that her actions flowed from her defective reason at that time, on balance."
8. Later, when discussing substantial impairment, Professor Greenberg stated that "people who have schizoaffective psychosis, acute psychosis, they won't change from day to day". [169]
9. Subject to considering the next point, I do not accept that either psychiatrist's opinion was substantially undermined by the inherent unreliability of the accused's account of her precise actions and thought processes at the time she killed Ms Ritchie. The very large body of evidence that was tendered concerning her mental functioning in the period immediately up to the killing and in the period afterwards clearly demonstrate that she was in a sustained period of schizoaffective psychosis. The psychiatrists' opinions were to the effect that while the particular delusions and other affectations from which she was suffering at the precise time of the killing of Ms Ritchie may be unknowable, there is sufficient material from sources other than the accused to support a finding that she was suffering from delusions and was otherwise mentally ill at that time.

The Accused's Lies and Actions in Covering Up Ms Ritchie's Death

1. The strongest point raised by the Crown as undermining the conclusions of the psychiatrists concerns the accused's actions immediately after she killed Ms Ritchie.
2. I have already noted Dr Ellis' evidence that the accused's action in covering Ms Ritchie's body with newspapers and pillows was consistent with an acceptance by her of the legal "wrongfulness" of her actions but was not inconsistent with not knowing that her conduct was morally wrong and, in particular, that she was incapable of "reasoning with some moderate degree of calmness" as to the "wrongness of the act" (Stapleton at 367; see [23]). Dr Ellis explained that the accused's actions in covering up the body and turning the light off when Mr Lyford knocked on the door were "more likely, given the persecutory delusions at the time, [to be] a disorganised attempt to avoid her perceived persecution". [170] Dr Ellis gave the same explanation when cross-examined about the accused's actions in pushing Mr Lyford even though she stated that she was scared of him. [171]
3. In seeking to ascertain the accused's version of the events that led to the killing of Ms Ritchie, Professor Greenberg took up with her a number of the points relied on by the Crown that are said to demonstrate a concealment of the crime and acknowledgement of wrongdoing (see [110]). In his oral evidence, Professor Greenberg was taken through his discussion of the points noted in [126] above with the accused. [172] Professor Greenberg stated that the accused's answers fixated upon her supposed fear of Mr Lyford which was said to be an aspect of her delusions. [173] In cross-examination, Professor Greenberg agreed that a number of incidents prior to 20 March 2016 revealed that she was in a fearful state including her paranoid delusions about someone living in her roof and her storing a knife in her teddy bear. [174] He also agreed that her hostile interaction with Mr Lyford could have led to him being incorporated into her persecutory delusions. [175]
4. Overall, like Dr Ellis, Professor Greenberg concluded that the accused's actions in covering up Ms Ritchie and turning the lights of suggest that she understood the "legal wrongfulness" of her actions but that "on balance, she did not have a moral understanding of the wrongfulness" of her actions. [176]

Absence of Reference to Delusions

1. As noted, the Crown submitted that the omission by the accused to any reference to her delusional beliefs in her conversations with the police in the period immediately after the killing of Ms Ritchie tended to negate the suggestion that any such delusions were operative when she killed Ms Ritchie.
2. Two points responding to this contention arise out of the evidence of Dr Ellis and Professor Greenberg. The first is that both psychiatrists considered that not much, if anything, flowed from this failure when the subject matter of the questions asked of the accused concerned matters other than the genesis and development of her delusional beliefs. [177]
3. Second, aspects of the Crown's submissions were predicated on the assumption that the only relevant manifestations of the accused's psychiatric condition were delusions and hallucinations. I have set out in [30] above Professor Greenberg's explanation of schizoaffective disorder as involving symptoms of both schizophrenia and bipolar. Professor Greenberg concluded that the accused's reasoning or rationale for the assault was largely based on her "paranoid psychosis" but emphasised that her schizoaffective disorder had a "mood component". [178] Thus, while the accused may have not relayed her delusions to the police between the time of her arrest and 3.00am in the morning of 21 March 2017, there is no doubt that they witnessed other manifestations of her schizoaffective disorder. Similarly, often the questioning of the psychiatrists distinguished between the accused acting out of anger and the accused's mental illness. [179] In that regard, Dr Ellis accepted that it was likely that the accused directed anger towards Ms Ritchie but that would be "anger interacting with symptoms of mental illness". [180] There are many instances of the accused acting in anger in the period prior to 20 March 2017 but it was nevertheless anger that stemmed from her mental illness.

Conclusion

1. To this point I have not referred to the accused's intoxication. Some of the police witnesses who interacted with the accused after she was arrested referred to her smelling of alcohol, [181] others did not. [182] Only one empty bottle of wine was found at the scene. The blood test of the accused did not reveal any alcohol reading although the blood sample was taken approximately 24 hours after she was arrested. In the end result, there is no evidence that she was substantially affected by alcohol beyond it acting as a disinhibiting factor. In any event any affectation of her by alcohol does not preclude her from being found not guilty by reason of mental illness given that she clearly has another operative condition, namely, schizoaffective disorder (Fang (No 3); see [25]).
2. There is some force in the Crown's submission that the actions of the accused immediately after the death of Ms Ritchie reveal an appreciation of the moral wrongfulness of her actions. If the opinions of Professor Greenberg and Dr Ellis that the accused was mentally ill rested solely or largely on her account of the delusions that she experienced during the time she killed Ms Ritchie then, given her actions immediately afterwards, I would have concluded that the accused had not discharged her onus of proof. However, their opinions were not so dependent. Their diagnoses and opinion relied on, and were supported by, a very strong body of independent evidence concerning the accused's conduct and mental condition right up to the time she killed Ms Ritchie and from the time she was arrested. The weight of the material points strongly to the accused suffering from a mental illness when she killed Ms Ritchie. The difference in the accounts given by the accused to Professor Greenberg and Dr Ellis undermines any attempt to identify the specific delusions or affectations that she may have experienced when she killed Ms Ritchie. However, based on the independent evidence and the psychiatric evidence, I am satisfied that she was experiencing delusions and affectations at that time as a consequence of her schizoaffective disorder. The accused's actions immediately after the killing are equivocal in that they are consistent with her having appreciated the legal but not moral wrongfulness of her actions. However, the other material available means that the accused has discharged her onus.
3. I am satisfied on the balance of probabilities that the accused could not reason about the killing or assaulting of Ms Ritchie "with a moderate degree of sense and composure" such that she could not know that what she was doing was wrong (Porter at 189-190; Stapleton at 367). Accordingly, I am satisfied on the balance of probabilities that, at the time she killed Ms Ritchie, the accused was labouring under such a defect of reason from a disease of the mind, namely a schizoaffective disorder and its effects, that she did not know that what she was doing was wrong in accordance with the ordinary standards of right and wrong adopted by reasonable people.

Conclusion

1. It follows that I must return a verdict of not guilty by reason of mental illness.

Endnotes

1. Ex U, tab 8 at [15].
2. Ex 1; Ex U, tab 30 at [20].
3. T 30/08/17 p 115.45 to 116.16.
4. Ex B p 1.
5. Lyford 20/3/16 at [4].
6. Ex U, tab 49 at [6].
7. Ex U, tab 41 at [5].
8. Ex U, tab 50 at [12] to [16].
9. Ex U, tab 49 at [7].
10. Ex U, tab 17 at [25].
11. Ex U, tab 4 at [7].
12. Ex U, tab 31 at [10].
13. Ex U, tab 32.
14. Ex U, tab 32 at [6].
15. Ex U, tab 34 at [7].
16. Ex U, tab 36 at [6].
17. Ex U, tab 36 at [4].
18. Ex U, tab 35 at [7].
19. Ex U, tab 38 at [4].
20. Ex U, tab 4 at [9].
21. Ex U, tab 5 at Q217 to Q228.
22. EX U, tab 8 at [20] to [22].
23. Ex U, tab 35 at [11].
24. Ex U, tab 40 at [7].
25. Ex U, tab 35 at [11].
26. Ex U, tab 4 at [10].
27. Ex U, tab 5, A247.
28. Ex U, tab 5, Q332 to Q339.
29. Ex U, tab 4 at [11]; Ex U tab 6 at [5].
30. Ex U, tab 6 at [5].
31. Ex U, tab 6 at [9].
32. Ex U, tab 12 at [8].
33. Ex U, tab 12 at [9].
34. Ex U, tab 12 at [10].
35. Ex U, tab 12 at [11].
36. Ex U, tab 10 at [11].
37. Ex U, tab 12 at [12].
38. Ex U, tab 10 at [16].
39. Ex U, tab 10 at [17.
40. Ex U, tab 11 at [7].
41. Ex U, tab 12 at [13].
42. Ex U, tab 12 at [16].
43. Ex U, tab 22 at [8].
44. Ex U, tab 22 at [10].
45. Ex U, tab 22 at [10] and [13].
46. Ex U, tab 21 at [9] to [10].
47. Ex U, tab 16 at [6] to [7].
48. Ex U, tab 22 at [14].
49. T 28/08/2017 at p 23.
50. T 28/08/2017 at p 23.
51. Ex U, tab 15 at [24].
52. Ex U, tab 20 at [7].
53. Ex U, tab 19, A90.
54. Ex U, tab 19, A99.
55. Ex U, tab 19, A171.
56. Ex U, tab 19, A176.
57. Ex U, tab 19, A186.
58. EX U, tab 19 A187 to A190.
59. Ex U, tab 19, A198.
60. Ex U, tab 30.
61. T 29/08/2017 at p 87.
62. Ex U, tab 25 at [24]; Ex A p 49, p 79.
63. Ex D; Ex E.
64. Ex U, tab 26 at p 3.6.
65. Ex U, tab 27.
66. Ex O.
67. Ex U, tab 30 at [21].
68. Ex U, tab 30 at [31].
69. Ex D p 1.
70. Ex U, tab 28 at p 13.
71. Ex U, tab 28 at p 13.
72. Ex A p 69, p 70.
73. Ex U, tab 28 at p 9.
74. Ex G.
75. Ex 4.
76. Ex M.
77. Ex 3.
78. Ex M.
79. Ex 4 p 1.
80. Ex 4 p 2, Ex 4 p 3.
81. Ex U, tab 57 at [44].
82. Ex 5 at p 3.
83. Ex M p 1.
84. Ex U, tab 48 at [5] to [7].
85. Ex M at pp 13 and 20.
86. Ex U, tab 52 at [10].
87. Ex U, tab 52 at [11].
88. Ex U, tab 51 at [8] to [9].
89. Ex M page 10.
90. Ex M at p 11.
91. Ex M at pp 11 to 15.
92. Ex M at p 12.
93. Ex M at p 16.
94. Ex M at p 16.
95. Ex T.
96. Ex M at p 18.
97. Ex T at page 4.
98. Ex U, tab 46 at [8].
99. Ex U, tab 46 at [11].
100. Ex U, tab 46 at [13].
101. Ex U, tab 42 at [5] to [6].
102. Ex U, tab 43 at [11].
103. Ex U, tab 52 at [12].
104. Ex U, tab 47 at [13] to [15].
105. Ex 1 at p 10.
106. Ex 1 at p 11.
107. Ex 1 at p 13.
108. Ex 3 at p 16 to 23.
109. Ex 3 at p 26.
110. Ex 3 at p 29 to 32 and 39 to 40.
111. Ex 3 at pp 43 to 44.
112. Ex 3 at p 46.
113. Ex 3 at p 46.
114. Ex 3 at p 53.
115. Ex 3 at p 59.
116. Ex 1.
117. Ex 2.
118. Ex 5.
119. Ex 1 at p 5.5.
120. Ex 5 at p 3.5.
121. Ex 5 at p 4.
122. Ex 5 at p 4.6.
123. Ex 5 at p 5.2.
124. Ex 5 at p 5.9.
125. Ex 5 at p 7.2.
126. Ex 5 at p 7.3.
127. T 28/08/2017 at p 55.6.
128. T 28/08/2017 at p 67.39.
129. Ex 5 at p 8.1.
130. Ex U, tab 53 and tab 54.
131. Ex U, tab 53 at p 3.1.
132. Ex U, tab 53 at 4.9.
133. Ex U tab 53 at 5.1.
134. Ex U, tab 53 at pp 4.7 to 6.6.
135. Ex U, tab 53 at p 13.
136. Ex U, tab 53 at pp 14 to 18.
137. Ex U, tab 53 at p 19.3.
138. Ex U, tab 53 at p 19.10.
139. Ex U, tab 53 at p 20.7.
140. Ex U, tab 54 at p 3.8.
141. Ex U, tab 54 at p 4.10.
142. Ex U, tab 54 at p 5.
143. Ex U, tab 54 at p 5.7.
144. T 30/08/2017 p 119.50.
145. T 30/08/2017 at pp 127 to 128.
146. T 30/08/2017 at p 127.39.
147. Outline of Submissions for Accused, 30 August 2017 at [1].
148. Outline of submissions for the Accused, 30 August 2017 at [6].
149. Outline of submissions for the Accused, 30 August 2017 at [7].
150. T 30/08/2017 at p 128.20.
151. T 30/08/2017 at pp 128.47 to 129.5.
152. T 30/08/2017 p 143.15.
153. T 30/08/2017 at p 129.35.
154. T 30/08/2017 at p 129.38.
155. T 30/08/2017 at p 130.9.
156. T 30/08/2017 at p 130.23.
157. T 30/08/2017 at p 130.37; T 30/08/2017 at p 134.23; see [49] and [53].
158. T 30/08/2017 at p 131.10; see [49].
159. T 30/08/2017 at p 139.30.
160. T 28/08/2017 at p 41.35; p 42.47; 52.57.
161. T 28/08/2017 at p 48.11.
162. T 28/08/2017 at p 48.30.
163. T 28/08/0217 at p 48.49.
164. T 28/08/17 at p 43.1.
165. T 28/08/17 at pp 60; 61.27; 62.34.
166. T 28/08/2017 at p 63.10.
167. T 30/08/0217 at p 115.9.
168. T 30/08/2017 at p 117.40.
169. T 30/08/2017 at p 122.5.
170. T 28/08/2017 at p 54.43.
171. T 28/08/2017 at p 56.
172. T 30/08 2017 at pp 110 to 114.
173. T 30/08/2017 at pp 112 to 114 esp p 114.21; Ex U, tab 53 at p 20.1.
174. T 30/08/2017 at p 123.
175. T 30/08/2017 at p 124.10.
176. T 30/08/2017 at p 118.10.
177. T 28/08/2017 at p 50.46; T 28/08/2017 at p 116.49.
178. T 30/08/2017 at p 118.20.
179. eg T 28/08/2017 at p 42.12.
180. T 28/08/2017 at p 42.19.
181. See for example [57].
182. See for example [58] and [61]. 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: 05 September 2017