R v Fitchett [2009] VSCA 150

R v Fitchett [2009] VSCA 150 - VSCA 2009 case summary — Zoe

[18]

6 September 2005

Dear Patra,

The last time we sat opposite each other in your cosy inviting home, I told you of my intentions of staying with David for the sake of the children until they were a little older.

I was determined to lie, cheat, be selfish and greedy in order to claim whatever I could in order to start a new life with Thomas and Matthew. Who was I kidding? The problem was...I don't know how to be selfish or greedy.

When I arrived home I lay on my bed and read numerous articles on Passive Aggressive Personality Disorder. The shock of realising that all my efforts - well, it doesn't matter. My spirit was broken - something inside me died. I told David it was over on the weekend because I'd already decided on my plan. I asked him to take the boys out on Fathers' Day and have a wonderful time as it would be his last as the 'Fitchett' family. When we had our talk he said that he should never have had children amongst other things. I know he loves the boys the only way he knows how. Unfortunately he had no good role model as a child. I on the other hand adore my boys who have given me more pleasure than I could ever have imagined.

Part of me despises David but like you kept telling me - - - He just can't help it.

Sadly I'm too broken to go on. Today the boys will be given an overdose as I cannot and wouldn't ever abandon them. If I had real support from somewhere from someone who really cared it may have been different. I had a few good friends who will be shattered by my actions and for that I am sorry.

As for David - his Father or sister. My Mother/Father - damaged sisters. What a list of support.

Thomas and Matthew have had a wonderful childhood to date and I wont let anyone hurt them - ever! They think we are going on an exciting trip today but I've told them they need to take some medicine so they wont' get air-sick. I'm not a coward - nor am I crazy. I see this as my greatest act of love. I'm not punishing David. I pity him.

Patra please don't feel you have failed me. On the contrary - - - I know now I was beyond help. I am so sorry for the pain I will cause you but you gave me enormous peace by mirroring me. Our [sic] now want peace forever. I have enclosed some treasures I want you to keep as well as the clock you so kindly loaned me.

Also the money for missing my appointment with you today.

Thankyou dear Patra for your love and kindness. You're gifted and beautiful and good - a real woman who I not only admired by [sic] selfishly wished you were my mum (sorry). You're too young (big sister).

Hugs and kisses

Donna.

[35]

[COUNSEL]: Just coming back to this motive, you are aware of the account given by her to Dr Leach at the Box Hill Hospital that her husband had told her he regretted having children?

[WITNESS]: Yes

[COUNSEL: You are aware of a comment to Louise Mitchell that she was upset by Thomas saying he wanted to be with his father?

[WITNESS]: Yes

[COUNSEL]: And you are aware of the proximity to Father's Day in relation to these events?

[WITNESS]: Yes

[COUNSEL]: Do they have a bearing, as far as you can see, on her motivation in relation to this?

[WITNESS]: She also made statements about this being the last Father's Day she would spend - sorry, that Mr Fitchett would spend with his children. Obviously I had to consider a range of possibilities for these events but the facts that you have led there to me don't necessarily indicate that the actions were punitive. That was one of the readings which I think one could take of a number of statements about Mr Fitchett, but there were other statements surrounding those ones, for instance, to Dr Leach, indicating that her children were safe and so forth which I thought cast a different light on those statements.

[COUNSEL]: Thank you. Just finally, Doctor, this appears to be a particularly difficult case owing to the lack of psychotic condition; would you agree with that?

[WITNESS]: Difficulty (sic) in what sense?

[COUNSEL]: Difficult from your point of view in relation to a jury ascertaining mental impairment or no mental impairment?

[WITNESS]: Certainly the grounds for a mental impairment defence are frequently significant brain injuries or intellectual disability or psychotic illnesses, but the test is not specifically defined that there must be a psychotic illness present. It goes instead to disorders of thinking and although there were no overt psychotic symptoms, the waiting and prioritising that Ms Fitchett gave to a range of aspects of her life at the time to me were gravely irrational, so awaiting that, for instance, that her children would be better off dead than being in the care of her husband, to me is an irrational thought which although not psychotic clearly indicates an inability to reason at the time.[8]

[37]

[WITNESS]: The first question that is a relatively straightforward question for a mental health professional psychiatrist like myself is did the person have a mental disorder or [as] the law often terms it a 'disease of the mind' at the time of the offence. That's in this case I don't think much in doubt. She had a depressive disorder. She suffered on and off for depression for some years. Even the account of the husband who didn't notice much wrong did note that she had not been sleeping in the days before the event. We have the evidence of her sister of this very agitated odd disturbed state. The evidence of her friend who gave evidence in this court, again suggesting that something was profoundly different about her. Then she is examined by competent mental health professionals within hours and certainly over the few days following the event and they all come to essentially the same conclusion that she had a depressive illness. That depressive illness recovers with treatment and then relapses, which is what you would expect with a depressive illness. So for the first stage it doesn't seem to me that there is a great problem. She had a disorder of the mind, a disease of the mind and that was a depressive illness. The next question is how was this affecting her at the time of the offence. It certainly in no way disturbed her ability to know that she was carrying out a carefully planned murder/suicide - I use the term 'murder' perhaps wrongly - homicide/suicide, so she had planned to kill herself and to kill her children. To some extent we can gain insight into the reasoning that led to that, both from the suicide notes and from her statements afterwards. She believed that this was an act of love, this was a necessary act, that her children could not have a decent life without her. I think you don't need a psychiatrist to tell you that, to come to be the conclusion that it is better to be, to kill your children than to leave them in the care of friends and family her husband who, for all else, she made no bones about, cared and loved these children is a piece of reasoning which it is very difficult, I think, for the normal mind to get itself round. So this, to me at least, suggest that the depressive disorder was present, was in some way perverting her understanding of the world to such an extent that she actually believed that she was, and she said subsequently, that what she was doing was right. I don't think a loving, caring mother, which we know Ms Fitchett was, could come to such a dreadful and absurd conclusion unless something was affecting her reason and we know that what is likely to have been affecting her reason was the depressive disorder possibly aggravated by the sudden withdrawal of the antidepressants and the withdrawal of the thyroid hormones which may well have added to the agitation and disorganisation of the thought present at that time.[9]

[44]

[WITNESS]: My view, after reading the documents that I had and hearing the evidence of the psychiatrists is that Ms Fitchett was - seems to have been affected by some fluctuating depression prior to the incident in which her children were killed but I didn't find enough evidence that she was suffering from a severe depression prior to the killings.

[COUNSEL]: Now, as far as the material you have examined, what material did you examine that led you to a view that there was depression and you say - well, what material did you examine that supported a diagnosis of depression?

[WITNESS]: I read the notes of the general practitioner which Dr Maguire has spoken about that the doctor had prescribed an anti-depressant which is commonly prescribed by general practitioners but that had been proscribed, (sic) it seems, had been stopped and then prescribed again. [12]

...

[WITNESS]: I have read the notes of the clinical psychologist, Ms Antonis, which indicated that there were discussions about her mental state that suggested that she was depressed but I thought from the notes only mildly depressed and I read the witness statements of her husband and I read also the report of Dr Sullivan and those things suggested that although there were episodes of depression at the same time that Ms Fitchett was capable of leading a relatively normal existence and that she did derive enjoyment from a number of activities, including that she, it seems from the statement of her husband, that even at the time that she seemed to have been, as her husband describes, in a bad mood, at the same time she was able to enjoy playing with the children, so her mood lifted when something good happened such as the children being around and being able to play with them, and she was able to engage with neighbours and in conversations visiting her sister with other people's children and taking the dog for a walk and so on, which are activities that, in my opinion, a severely depressed person would not engage in.[13]

...

[WITNESS]: Again, I think that a person who is suffering from a severe depression suffers impairment of their cognitive functions, that is their thought processes, their ability to concentrate and remember and perform calculations, so in my opinion a person with severe depression would not be able to successfully engage in share trading or in fact would probably not even maintain the interest to bother with something that required the kind of mental activities of share trading.[14]

[61]

... the applicant's counsel, who presented the applicant's case with clarity and frankness, submitted that in point of law the trial judge was bound to inform the jury that if they returned a verdict of not guilty on the ground of insanity, the applicant would be held in some appropriate institution during the Governor-General's pleasure. The reason assigned by counsel for this requirement was, in the words of Barry J, in R v Weise [1969] VicRp 117; [1969] VR 953, at p 965, 'to ensure that the jury will be able to deliberate upon the issue [ie of insanity] without being distracted by a fear that if they find a verdict of not guilty on the ground of insanity, the accused, who they may consider should be kept in custody for protective purposes, may be set free'.

In our opinion, the law does not require any such direction. Indeed, the jury are not concerned with the consequences which may follow upon their verdict whether it be a verdict of guilty of the offences charged or a special verdict of not guilty on the ground of insanity. In our opinion, the judge is not bound to tell them, and counsel ought not to be allowed in any case to tell them, of the possible results of their verdict. No doubt, in places where capital offences remain, juries know what is the maximum punishment for the offence. Even then, in our opinion, it is undesirable that counsel be allowed to attempt to divert the jury from their consideration of the issues for their decision by emphasis upon the consequences of their verdict should they convict.

Not only do we think that a trial judge is not bound to inform the jury of the consequences of a verdict of not guilty on the ground of insanity, but in our opinion it is in general unnecessary and undesirable that he should do so. With great respect to so experienced a judge as the late Barry J, we are unable to accept as universally valid the reason he gives in R v Weise, supra, for giving the jury information as to the consequences which may follow on a verdict of not guilty on the ground of insanity. Certainly Dixon J, as he then was, did not so think when summing up in R v Porter [1933] HCA 1; [1936] ALR 483; 55 CLR 182, a case in which insanity was pleaded. There is, in our opinion, no need to complicate a trial and the resolution of the issues which arise in it by the introduction of what is truly, so far as the jury are concerned, an extraneous matter. It is, in our opinion, generally undesirable that reference should be made to the possible consequences which may ensue upon any verdict which the jury may properly return.

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