R v Harrington

Applicable legal principles

1. Because this is a hearing pursuant to s 31 of the Act, and is not a trial, there is no requirement for me to comply with the requirements of s 133 of the Criminal Procedure Act 1986 (NSW). In essence, s 133 requires a Judge hearing a matter by way of a trial in the absence of a jury to refer to all of the principles of law that were applied by the Judge, the findings of fact upon which the Judge relied and to take any warnings into account that would otherwise have been the subject of a warning given to a jury. Whilst I do not have a jury, that requirement does not apply, but it remains the fact that these are judicial proceedings and in the performance of the judicial function, it is necessary to provide some reasons for the outcome, whatever that might be: R v Sands [2021] NSWSC 1325 at [4]; R v Jackson [2021] NSWSC 1404 at [13].
2. Section 28 of the Act relevantly states: 28 Defence of mental health impairment or cognitive impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person - […] (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act as perceived by a reasonable people was wrong). […]
3. The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had the effect outlined in s 28(1)(b), is a question of fact, and is to be determined by the jury on the balance of probabilities: s 28(2).
4. Section 28(3) of the Act provides: "Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect."
5. Although s 28(2) mentions a jury, a jury is, in fact, not always required and I am sitting, as I have indicated, without a jury.
6. Section 31 provides for a special verdict where the defendant and prosecutor agree on impairment. It reads: 31 Special verdict where defendant and prosecutor agree on impairment The Court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if - (a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and (b) the defendant is represented by an Australian legal practitioner, and (c) the Court, after considering that evidence, is satisfied that the defence is so established.
7. Section 4(1) of the Act provides: 4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if - (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. […]
8. Section 4(2) of the Act provides non-exhaustively: "A mental health impairment may arise from any of the following disorders but may also arise for other reasons […]" And it sets out a number of conditions, relevantly including a psychotic disorder under subs (c).
9. Section 31 of the Act applies here because the defendant and the prosecutor relevantly agree that the proposed evidence in the proceedings establishes a defence of mental health impairment and, as noted above, the defendant is represented by an Australian legal practitioner. The task I must now perform, pursuant to s 31(c) of the Act, is to determine, after considering the evidence, that I am satisfied that the defence is so established.
10. Relevantly, section 33(1)(b) provides: 33 Effect of special verdict (1) On the return of a special verdict of act proven but not criminally responsible, the Court may make one or more of the following orders - […] (b) an order that the defendant be detained in the place and manner that the Court thinks fit until released by due process of law, […]
11. As noted, both parties before me today submit that an order pursuant to s 33(1)(b) is appropriate.

Material before the Court

1. I now turn to the evidence before me.
2. In addition to the recent reports set out at the start of this judgment, I also have before me: 1. a Crown bundle of material comprising: 1. a copy of the indictment; 2. the agreed facts, which have been signed by both parties; 3. a report of Dr Richard Furst, dated 19 September 2023; 4. a report of Professor David M Greenberg, dated 20 February 2024; 5. the transcript of a bail application before another court, dated 27 March 2024. 1. summaries of the first and second electronically recorded interviews with the accused, conducted on 22 March 2023; 2. a report of Professor David M Greenberg, dated 8 August 2024; and 3. a further supplementary report of Professor David M Greenberg, dated 11 August 2024.

Facts of the offending

1. It is necessary for me now to go to the facts of this matter and these facts are, on any view, truly tragic.
2. The accused was born in the UK. She moved to Australia in around 2016, aged 24. In 2019, she met her partner, Harry Smith [1] . She worked as a disability carer and fashion stylist, amongst other jobs. In around 2020, she began her disability carer career by caring for a woman, Ms Burton, who lived at Westleigh. Ms Burton lived in a five-storey home which contained a heated indoor pool on the ground floor with a connecting lift between the floors.
3. In 2021, the accused and her partner began to try for children and the accused fell pregnant. On 8 May 2022, James William Smith was born to the accused and to her partner. There were no issues with the birth, and they were very happy to be parents. James had no issues as a newborn and was a well-settled baby. At the end of October 2022, the accused and her partner decided to book a trip to Europe. They planned to take James to see the accused's family in the UK and they were planning to get married in Bali at the end of the trip. They booked the trip for 24 March 2023. Around January 2023, two or three months prior to the offending, the accused sent messages to the mother of her partner, Ms Smith, saying she wasn't feeling herself. They met in person. According to Ms Smith, the accused was very erratic and wasn't herself and Ms Smith suggested she see a doctor. Ms Smith made notes of the interaction she had with the accused and, amongst those notes, were recorded the following: 1. that the accused was saying via SMS that she has had scary thoughts; 2. the accused was talking quite erratically; 3. the accused kept crying on and off; and 4. Ms Smith spoke to the accused about postnatal depression. Around the same time the accused disclosed to her partner that she was going through dark times. The accused and her partner moved back into the same address as her partner's parents, albeit in a different space within that address.
4. On 5 March 2023, the accused brought James to have a swim at Ms Burton's house. James seemed to enjoy the swim and fell asleep in the accused's arms. On 18 March 2023, the accused and her partner held a going away party prior to the trip which was attended by family and friends who recall they were both excited to be going away.

The submersion incident - 19-20 March 2023

1. Shortly before 10:00am on Sunday 19 March 2023, the accused sent a text message to Ms Burton to arrange a further swim visit with James. The accused arrived at around 8:00pm. The accused consumed two gin and tonics with Ms Burton, and after the second drink the accused said she was going to take James downstairs for a swim. Another person at Ms Burton's residence went downstairs to turn on the lights and check the temperature of the pool. That other person was met shortly after by the accused in the pool area. They offered to hold James while the accused changed but the accused said that they were totally fine. That other person left the pool area and returned upstairs to speak with Ms Burton. While the accused and James were alone, the accused did an act in an attempt to drown James with the intention of killing him. That act underpins the first count in the indictment.
2. The accused provided different versions of events to police during the recorded interviews. Those versions were: that James walked into the pool and was retrieved by the accused, or that the accused attempted to smother James in the pool area by holding him tightly against her chest, or that the accused was holding James in the middle of the pool, she let go of him and he sank.
3. Ms Burton and the other woman at the house heard the accused scream from the pool area and the other person ran downstairs to investigate. The accused was screaming, and James was lying on his back. He was wet with just a nappy on, his skin was blue and purple, and he was cold to the touch. The other person told the accused to call triple-0 and the accused went into the lift and travelled upstairs while the other person performed CPR on the infant. A short time later she heard the infant make a light choking sound and observed him to be "breathing a little bit". He eventually began to vomit a little and started to cry, lightly and feebly. The accused returned. She was still screaming and emotional. Apparently, she had not called an ambulance yet. The other woman told the accused to calm down and go upstairs to ask Ms Burton to phone the ambulance. The accused then entered the lift and proceeded to travel upstairs. At around 8:55pm, the accused exited the lift, screaming "call an ambulance", which Ms Burton did immediately.
4. Ambulance officers arrived at 9:18pm. The officers described the accused as highly emotional, displaying odd behaviour, and because of her behaviour, they separated the accused from the infant. They were transported to hospital and one of the paramedics explained to hospital staff that she had strong concerns about the accused's behaviour.
5. The infant was provided a bed in the hospital at around 4:30am. By 8:30am on 20 March 2023, the infant was very active and trying to get out of his cot. The accused's partner asked the nursing staff whether a doctor could check on him and he was informed the doctor would do so during their next rounds, but by 9:40am no check-in had occurred. At that point the accused, her partner and the infant checked out of hospital.
6. The child was then seen by a medical practice on the same day and records obtained from the Medical Centre included notations which said the child "looks well", "happy" and that there were no signs of negligence seen. It is also recorded that the parents did not know they had to wait at hospital for 24 hours for submersion incidents.

The smothering incident - 21-22 March 2023

1. On Tuesday 21 March 2023, at about 4:00am, the accused woke up to tend to James and the accused's partner woke shortly after, at about 5:00 to 5:30am, to get ready for work. At around 11:10am, the accused's partner's aunt, Ms Jones, arrived at the address and noticed the accused appeared stressed, tired and upset. James went behind the couch and was standing up. He fell back and hit his head. Ms Jones picked him up and handed him to the accused. He cried for a moment and Ms Jones left a short time later at around 11:45am.
2. After Ms Jones left, the accused did an act which caused James to stop breathing with the intention of killing James. That act underpins the second count of murder.
3. The accused later provided different versions of events to police during the recorded interviews regarding what took place during this incident. They were that: 1. she put James to sleep before going in to check on him and finding him unconscious. She tried to resuscitate James. 2. she smothered James by holding him too tightly against her chest for a few minutes such that he stopped breathing whilst she was feeding him. She tried to resuscitate James.
4. The accused took James out of the cot and placed him on the ground. She tried to call her partner twice before finally reaching him at 12:20pm, telling him, "I just went and checked on James. He wasn't breathing". At 12.29pm, Ms Jones received a call from the accused asking her how to do CPR and asking her to return to the address. At 12:33pm, the accused's partner called triple-0. New South Wales Ambulance attended, and they provided, as I understand it, while they were on the way, instructions on how the accused could perform CPR. Ms Jones arrived to assist the accused perform CPR whilst on the phone to triple-0. At 12:39pm, fire and rescue officers arrived on the scene and administered first aid to the infant. At 12:55pm, ambulance officers arrived on the scene.
5. The intensive care paramedic observed that James was obviously in cardiac arrest and poorly perfused. History was obtained by another ambulance officer at the scene. The accused was observed to be distressed. The intensive care paramedic found no redness, haematoma or boggy mass to suggest that a fall had taken place and indicated to police they were on the scene for about 40 minutes.
6. At 1:16pm, the infant was removed from the premises by ambulance who were still performing first aid and was taken by ambulance to the Children's Hospital at Westmead. He was accompanied by the Ms Smith. The accused's partner arrived at the home at around 2:00pm and observed the accused to be upset and "very disorientated". A baby bag and formula was packed and taken to the Children's Hospital at Westmead. Throughout the journey, the accused's partner noticed her demeanour to be different to normal, with signs of agitation and vacancy appearing at times as though "she wasn't there". When they arrived at hospital, they were there for over three hours before a doctor spoke with them and told them that it was possible the infant was brain dead because he had been unconscious for so long. The accused dropped to the floor and started screaming and crying.
7. The next morning, on 22 March 2023, the accused insisted upon returning home and her partner observed that "she wasn't herself again". Ms Jones was present and said that the accused did not say a lot, seemed distant and "wasn't all there". At one point, Ms Jones suggested the accused go inside and have a shower. The accused went inside but, shortly after, Ms Jones observed the accused leave the property and head up the road. Ms Jones attempted to follow the accused at a distance. She finally found the accused after driving around the block and unsuccessfully trying to phone the accused, locating her over a kilometre away from the house. Ms Jones said the accused appeared unlike her normal self and described her demeanour as: "lights were on but nobody was home". She indicated to Ms Jones she wished to be brought back to hospital and when she returned to the hospital, her partner said she was dressed in his clothes, was frantic and didn't seem herself.
8. Various observations were made at the hospital. At 5:39pm, on 22 March 2023, the accused was interviewed by police, which was video recorded. As noted, a summary of the interview transcript has been placed before me. At 6:14pm, the police informed the accused she was under arrest and was conveyed to Hornsby Police Station. At 8:11pm, the accused participated in a further recorded interview with police. I have also had regard to a summary of that interview. At 1:49pm, on Thursday 23 March 2023, final tests were conducted on James as his condition did not improve. He was declared formally brain dead following clinical brain death testing. The accused's partner and his father were permitted time to spend time with James before life support was terminated. It was terminated around 3:20pm.

Report of Dr Richard Furst

1. I now turn to the expert medical evidence. Dr Furst is a Forensic Psychiatrist who assessed the accused on 21 July 2023. He also had access to other documents including statements from witnesses. Amongst other things, Dr Furst said, after recording some early history, that the accused's mother and stepfather were both heavy drinkers/alcoholics, and she ended up being raised by her grandparents. He said the accused suffered from depression and anxiety as a teenager, stemming from sexual abuse at the hands of two of her mother's younger brothers. The sexual abuse she suffered began when she was about eight years of age, continuing in her childhood and teenage years. She reported suffering a lot of confusion, depression and anger during the course of her sexual abuse victimisation and afterwards. There were previous periods in which she harmed herself by cutting her arms, suggestive of underlying complex post-traumatic stress disorder and/or borderline personality traits.
2. The accused saw a counsellor in England over a period of two to three years in an effort to deal with her trauma issues. She said she spoke to both uncles and wrote to them in her early twenties. One uncle said "sorry", an acknowledgment of guilt, then denied the abuse took place. Dr Furst records her grandparents apparently told her uncles to deny that anything happened. In any case, there was no emotional or legal closure, and she remained confused and stressed in her early twenties. She reported feeling "deeply sad". Dr Furst sets out her working history including that she worked as a professional model between 16 and 26 years of age, and as a receptionist for Aston Martin for two or three years in her twenties. She worked in disability care for about two years in Australia and supplemented her income by various other arrangements she had come to with some men.
3. He records that her intimate relationships were conflicted in her adolescence and early twenties, subsequently becoming more stable, including a relationship of 2 to 3 years' duration prior to commencing her relationship with her current partner when she was 27 or 28 years of age. She initially came to Australia on a travelling holiday and decided to stay after meeting her partner.
4. Dr Furst records that she suffered an exacerbation and escalation of her mental health problems over the last four years or so whilst living in Australia. She began to believe that she was responsible for the COVID-19 pandemic and that her partner was both gay and "cheating" on her, neither of which was true. She would personalise things and adopted usually holistic and alternative/esoteric beliefs. She believed she was "dealing with the universe", the universe was "speaking to her" and her deceased mother was "speaking to her". She would go for Reiki healing sessions and was focused on "energy levels", amongst having other issues and eccentric beliefs.
5. Her unusual beliefs were present even when she was not severely depressed, suggestive of a primary psychotic illness, such as schizoaffective disorder, rather than a primary mood disorder, even though she became much more depressed as time went on, especially earlier in 2023. After she was admitted into custody, she was assessed in the Mental Health Screening Unit as being acutely psychotic.
6. Dr Furst records a letter from Dr Jeremiah Bonifacio, a Psychiatry Registrar at the Silverwater Women's Correctional Centre, dated 28 April 2023, which outlined the reasons for her classification as an involuntary patient and admission to the Forensic Hospital including that she was acutely psychotic and suffering from her first episode of psychosis. She presented with auditory hallucinations, and Capgras' delusions that her family had been replaced by the devil, and what is described as a fatuous labile affect with hypersexualised and disordered behaviour. She tried to escape the correctional centre multiple times due to persecutory delusions. She had variable insight into her mental health. At times, help seeking and compliant, while at other times paranoid and guarded towards the treating team. She was assessed as being at serious risk of harm to herself through a deterioration in her mental state; ongoing disordered behaviour, which has included dangerously scaling the walls of the prison; and hypersexualised behaviour, making her vulnerable to exploitation. She was also at risk of harm from other inmates, given the nature of her charges. Additionally, she was of significant risk of harm to others, given her persecutory and paranoid delusions. Her treating team believed that in-patient admission to the Forensic Hospital for treatment was necessary and was the least restrictive form of care for her safe and effective treatment.
7. In his opinion, the mental health defence is available to the accused and she has a mental health impairment by virtue of her schizoaffective disorder. She was severely disturbed in her mood as at March 2023. She was also manifesting psychotic symptoms that included auditory hallucinations, delusions of reference, persecutory delusions and Capgras' delusions.
8. At the time of the incidents, the cluster of psychotic symptoms led the accused to believe that her son was not her son and had been replaced by some type of evil spirit or demon such that she had to kill him and that he would be better off that way. Her faculties and perceptions of reality were so deranged that she thought she was doing the right thing at the time.

Report of Professor David M Greenberg

1. Professor Greenberg provided a very detailed report based on interviews conducted with the accused on 8 and 11 January 2024 as well as other reports, documents and statements of witnesses. In essence, he agreed with Dr Furst. Amongst the detail of his report, he stated: "In my opinion, the accused has some form of schizophrenia spectrum disorder or other psychotic disorder […] (a mental illness), which may include schizophrenia, schizoaffective disorder or other specified schizophrenia spectrum disorder."
2. Professor Greenberg stated that during the accused's psychiatric assessments following the alleged offences, she has attracted various schizophrenic spectrum disorder psychiatric diagnoses. The diagnostic challenge has been the association of her having comorbid dissociative symptoms (depersonalisation and derealisation symptoms), a chronic history of substance use, and her underlying personality problems related to her traumatic upbringing and family background.
3. He said, in his opinion, the primary working diagnosis has been that the accused has either a schizophrenic disorder or a schizoaffective disorder. He also noted in relation to dissociative disorder symptoms: "It is possible she has had episodes or periods of depersonalisation or derealisation during her current episode of psychosis, but these symptoms can also be features of a schizophrenic illness."
4. He said he did not diagnose her with post-traumatic stress disorder or a cluster B personality disorder.
5. He said this in relation to her mental state at the time of the alleged offences: "The accused has given accounts over a period of a year or more, of the alleged gradual onset of her psychiatric symptoms (of mental illness) and symptoms of mental illness intensifying in the months and weeks prior to the alleged offences. For example: […] approximately one year after she arrived in Australia, she felt the 'universe was talking' to her. She alleged, during the COVID pandemic (2020/2021), she felt she was responsible for the pandemic. She also had beliefs that 'something was going on' and 'she didn't know about it'. She claimed she started having referential thoughts before her pregnancy that the TV was talking to her and 'everything was about [her]'. She stated these paranoid beliefs intensified about a month prior to the alleged offences. She alleged that in the final one to 2 weeks prior to the alleged offences [she] began to hear voices which she believed were people talking to her telepathically." (Emphasis in Original.)
6. On 6 April 2023, Professor Greenberg records that the accused was assessed by the psychiatrist, Dr Kiernan Dorney, who documented the accused alleging that when the baby was around six or seven months old, she started "losing touch" and "feeling like [she] needed to kill [herself]". She stated she was: "ruminating, pacing, [and she] just thought it was something that [she] needed to do".
7. On 21 April 2023, Dr Eugene Ho, a psychiatrist, documented that the accused described her situation changing a number of months previously. The accused alleged that she had repeated thoughts that "something bad was going to happen" to her son and that "he would do something bad". She would lose track of periods of time and had poor recollection of certain events. She later divulged that she felt everyone could read her mind and she could not trust anyone around her.
8. Professor Greenberg says that during his psychiatric interview with her, she stated these paranoid beliefs intensified about a month prior to the alleged offences. She stated that about two to three weeks prior to the alleged offences, she was getting "erratic and confused". He refers to the interview with police at Hornsby Police Station and, during that interview, when asked when it first happened that she felt the devil was inside James, she stated it was that week, before the swimming pool event, she noticed "[…] that he wasn't her baby anymore". During the interview with Professor Greenberg, the accused stated a few days prior to the offences, her partner's mother brought some cooked chicken to them and she felt that her partner's mother was trying to poison them. She did not tell anyone about these thoughts or beliefs because she believed she was having conversations, telepathically, in her head and they knew about it.
9. Professor Greenberg asked the accused when she first felt that James was not her real son and she stated this belief occurred two or three days before the offences. She alleged: "I thought I was supposed to do [it]. Can't explain, I knew it was wrong. I thought it was right at the time."
10. The accused said, on the day of the alleged offence, on 21 March 2023, she claimed she saw handprints on the windows. She claimed: "I thought this is what happens to children. They get raped." He also reports other statements made by the accused. I have included in this judgment only some examples of what I consider to be indicative of her mental state.
11. Professor Greenberg states: "In my opinion, Ms [Harrington] was suffering from a schizophrenic spectrum disorder, likely schizophrenia (or schizoaffective disorder) at the time of the alleged offences."

Forensic Mental Health Disposition Report and Addendum Letter

1. I just now briefly turn to the recent report of Dr Korbel and Ms Stuckey of 25 September 2024. They opine that the accused has a mental health impairment with a working diagnosis of Bipolar Disorder. They note, in December 2023, documentation indicated that the accused presented with complete remission of symptoms. In their opinion, there are reasonable grounds to conclude that the accused requires care, treatment and control for her own protection and the protection of others from serious harm. If inadequately treated, the accused's condition is likely to deteriorate, and she may then pose an increased risk of harm to others and/or herself. Subject to the ongoing implementation of her risk management plan, it is their opinion that the accused's placement in hospital offers the least restrictive option for safe and effective care. She requires ongoing treatment in a forensic rehabilitation unit to manage her risks. It is recorded this will allow for her to have gradual leave to the community while she obtains accommodation and community management is implemented.
2. In the addendum to the report Dr Korbel opines that it is likely that the accused would be suitable for referral to a medium secure hospital placement such as is provided at the Bunya Unit. Dr Korbel states that he understands the accused's current treating team plans to make such a referral once her matters have been finalised.

Consideration

1. I turn now to my conclusion. I have had regard to all the material placed before the Court, to which only some I have made special reference. I am satisfied beyond reasonable doubt that the accused committed the physical acts the Crown is required to establish in order to prove the offences charged on the indictment. I am also satisfied, on the balance of probabilities, that based on the combined and undisputed opinions of Dr Furst and Professor Greenberg, the accused did not know the acts were wrong; that is, she could not reason with a moderate degree of sense and composure about whether the acts, as perceived by reasonable people, were wrong because of a mental health impairment in the nature of a psychotic disorder, either a schizophrenic disorder, schizoaffective disorder or, based upon the most recent report of Dr Korbel and Ms Stuckey, a bipolar disorder. I am satisfied that the defence of mental health impairment is made out.

Orders

1. Accordingly, I make the following orders: 1. Enter special verdicts with respect to Counts 1 and 2, pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), namely that the acts are proven but the accused is not criminally responsible. 2. Pursuant to section 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Jessica Harrington is to be detained at the Forensic Hospital, or at such other place as determined by the Mental Health Review Tribunal until released by due process of law. 3. Pursuant to section 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Jessica Harrington is referred to the Mental Health Review Tribunal. 4. The Registrar is to notify the Minister for Health of these orders within 7 days. 5. The Registrar is to notify the Mental Health Review Tribunal of the verdict and these orders within 7 days. 6. The Registrar is to provide the Mental Health Review Tribunal with a copy of the judgment, orders and exhibits within 7 days. 7. The Registrar is to notify Justice Health of the verdict and orders, and provide a copy of the judgment, orders and exhibits to Justice Health within 7 days.

Endnote

1. All the names used in this judgment are pseudonyms: s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). 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: 14 October 2024