R v MM

Supreme Court of NSW|2024-08-23|Before: Hulme AJ

Solicitors: Director of Public Prosecutions (NSW)(Crown) Veronica Love Lawyer (Accused) File Number(s): 2021/223940

JUDGMENT

HIS HONOUR: The accused has been arraigned and has pleaded not guilty to a charge that on 6 August 2021 at Doonside she murdered Jason Galleghan.
This is a hearing pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The accused is legally represented. The prosecution and the defence agree that the proposed evidence in the proceedings establishes a defence of mental health impairment. Despite the parties agreeing, it remains a matter for the court to consider the evidence and decide whether the defence is established.
The accused is aged 18 but she was aged 15 at the time of the events in question. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits publication or broadcast of her name in a way that connects her with these proceedings. Jason Galleghan was aged 16 at the time but his mother has consented to him being identified and being referred to by his first name.

The offence

There are agreed facts as to the murder from which I have drawn the following summary.
Kayla Dawson was aged 19 and lived in a home in Perigee Close, Doonside with her partner. She was a friend of Jason. She came to think, wrongly, that he had stolen her AirPods. She told people about this and it was decided to lure Jason to the house to assault him as retribution for the theft. She would later admit to police that she had set Jason up by telling him to come to her house so that he could be bashed.
Adults and young persons including the accused gathered at Ms Dawson's home on the afternoon of 4 August 2021. Contact was made with Jason to encourage him to come to Doonside. At 3.45pm, Ms Dawson and young persons, BE (aged 14) and BL (15), left the home and went to the railway station to meet Jason and accompany him back to Perigee Close.
Meanwhile at the house there was a conversation involving Richard Sione (aged 32), the accused, TB (13) and AD (13) about what they intended to do to Jason when he arrived. They were saying they intended to "completely fuck him up". While Jason was walking with the others to the house the accused had a text message conversation with BE in which she said, in effect, "Bring him to the house. If you fuck him up without me, I'll kill you all".
Immediately upon arriving at the house, Jason was taken into a spare bedroom where the assault commenced. Between 4.09pm and 4.20pm he was assaulted by Richard Sione. Kayla Dawson, the accused and four other young persons, BE, BL, TB and AD, watched and encouraged the violence. Banging sounds were heard in the adjacent lounge room as well as Sione saying, "fuck, fuckin' gronk". People in a neighbouring house were also disturbed by the noise.
Jason was stripped of his clothing. The accused took his jumper and gave it to one of the adults in the lounge room. Another adult went into the bedroom and saw Richard Sione punching Jason to the head and body. He pulled Sione away.
Sione and the two adults from the lounge room left the house a short time later. The assault was carried on for a further 20 minutes by the accused and the four other young persons.
Video recordings were made of parts of the assault. They depict the sustained and gratuitous savagery meted out to Jason who was virtually naked and completely defenceless. The recordings include the accused not only physically taking part but continually yelling and screaming, encouraging others in the brutal attack. She taunted and belittled Jason with expletive laden abuse. She made hand gestures towards the camera, laughing. At one point she screamed at Jason, demanding that he repeat various youth postcode gang slogans. Her conduct and tone was chilling in its evil inhumanity. She repeatedly said she wanted him "finished".
It is unnecessary to describe the detail of the assault any further. Reference should be made to descriptions I provided when dealing with various co-offenders based upon the same recordings that were in evidence in this proceeding: see R v BE [2023] NSWSC 1007; R v BL [2024] NSWSC 51; R v AD [2024] NSWSC 444; R v TB [2024] NSWSC 447; R v Sione; R v Dawson [2024] NSWSC 378; and R v Sione; R v Dawson [2024] NSWSC 846.
Ms Dawson and the young persons fled the house at about 4.42pm, leaving Jason unconscious on the floor of the bedroom. An ambulance was not called until 5.42pm after Ms Dawson returned to the house. Officers found Jason on the bedroom floor where he had been left. They managed to re-establish a heart rhythm and took him to Westmead Hospital. He died from "complications of multiple blunt force injuries" to his head and body two days later.
On the night of 4 August 2021, the accused was at a nearby home in Mikado Way where Richard Sione and others were living. They watched videos of the assault, one of which had been uploaded to Instagram.
Richard Sione spoke to a witness that evening who asked what had happened around the corner, presumably referring to Perigee Close where there was a considerable police presence. He replied, "I just bashed this boy. I had to take off before the cops came. I left all the young ones around there to finish him off".
The accused was arrested on the morning of 5 August 2021 at the home in Mikado Way.

The defence of mental health impairment or cognitive impairment

The defence of mental health impairment or cognitive impairment is provided by s 28(1) of the Act: 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 - (a) did not know the nature and quality of the act, or (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 reasonable people, was wrong).
This case is concerned with a mental health impairment. That concept is defined in s 4: 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. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons - (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by - (a) the temporary effect of ingesting a substance, or (b) a substance use disorder.
If the defence has been established on the balance of probabilities there must be a special verdict of act proven but not criminally responsible: s 31.
The return of the special verdict has the consequence that the accused is not liable to be found guilty and sentenced for the crime charged. She could either be released, conditionally or unconditionally, or detained. That decision would involve a consideration of whether the accused poses a risk to herself or to others. Detention can be in a prison or a secure hospital or similar. There would be regular reviews by the Mental Health Review Tribunal. The detention would be until such time as the Tribunal determined the safety of the accused or any member of the public would not be seriously endangered and she could be released.

Report of Dr Richard Baker

Dr Richard Baker is a consultant forensic child and adolescent psychiatrist who provided a report for the defence. He reviewed a large volume of documents as well as the video recordings of the assault. He interviewed the accused at the Austinmer Unit of the Forensic Hospital on 20 September 2022.
Dr Baker referred to assessments made by other clinicians soon after the accused came into custody. [1] Dr Peter McInnis (consultant child and adolescent psychiatrist) first saw the accused on 20 August 2021. He observed symptoms endorsing the presence of psychosis. He said her presentation was "diagnostically unclear at this stage" and needed "longitudinal assessment".
There was an assessment by Dr McInnis and Dr Tacita Powell (advanced trainee in child and adolescent and forensic psychiatry) on 27 August 2021 where the accused presented with symptoms of "manic psychosis". On review on 3 September 2021 Dr McInnes said the accused presented with "features of mania and psychosis". There were ongoing symptoms of psychosis observed by Dr McInnes and Dr Power on 10 September 2021 but the accused was showing "early response to treatment". There were symptoms of ongoing mania but with a reduction in symptom severity when they saw the accused on 17 September 2021.
Dr McInnes saw the accused with Ms Stephenson, psychologist, on 1 October 2021 when there was a "mixed picture" of "both manic and depressive symptoms". Improvement was noted by Dr McInnes on 15 October 2021 and 5 November 2021. However, when seen by Dr McInnes and Dr Powell through the course of December the accused presented with bipolar depressive symptoms that progressively worsened.
Dr Powell saw the accused again on 12 January 2022 with A/Prof Andrew Ellis (consultant forensic psychiatrist and Clinical Director of the Forensic Hospital) and a multidisciplinary team from the Austinmer Adolescent Unit of the Forensic Hospital. She was recorded as having presented with mania with psychotic features on initial entry to custody at Reiby Youth Justice Centre. It was opined that she had likely been experiencing associated psychotic symptoms in the three months leading up to 4 August 2021.
The accused was found to be a "mentally ill person" and admitted as an "involuntary patient" at the Austinmer Adolescent Unit of the Forensic Hospital on 19 January 2022 having previously been at Reiby since her arrest. [2]
Dr Vivek Srinivasan (forensic psychiatry advanced trainee) considered the accused to present with bipolar affective disorder on 28 February 2022.
The accused's clinical presentation when seen by Dr Yolisha Singh (treating psychiatrist) and the Austinmer Unit multidisciplinary team on 7 and 16 March 2022 was considered to reflect hypomania and moderate depressive symptoms. Symptoms of acute mania and major depression were controlled. Ongoing symptoms of PTSD were observed.
Finally, Dr Srinivasan reviewed the accused on 4 April 2022 and considered she presented with bipolar disorder with co-morbid PTSD.

The accused's account to Dr Baker

The accused gave an account of the events of 4 August 2021 to Dr Baker. It included that she had consumed alcohol that day and described herself as being "very" intoxicated. She denied having used other substances. She recalled having racing thoughts which she had experienced for about four months prior and for at least a month after. She also recalled having fluctuating periods of "very high and low" energy over the month before. She heard voices intermittently on the day. Voices were of a command nature, directing her to steal alcohol, to laugh and to kill herself. During the assault she heard a voice telling her to "kill him", referring to Jason. She had the belief that her life was in danger and that "the devil was telling people to hurt me". This led her to the belief that she needed to harm Jason. During the assault a voice told her, "finish him or yourself". [3]
The accused described other experiences indicative of mental disorder in the period prior to 4 August 2021. They included a belief that others were able to hear her thoughts, externally and internally perceived voices, themes of religiosity (including belief in "spirits" and the "devil"), a perception that her life was a video game, increased energy and irritability, racing thoughts, and fluctuating frequency and intensity of mood and psychotic symptoms. [4]
The accused said she was using cannabis up to five times a week and alcohol "all day and all night" intermittently during the month prior to 4 August 2021. [5]

Dr Baker's diagnoses and opinion

Dr Baker made the following diagnoses: [6] 1. Bipolar I disorder. 2. Attention-deficit hyperactivity disorder. 3. Post-traumatic stress disorder. 4. Cannabis, alcohol and cocaine substance use disorder (in remission in a controlled environment). 5. Conduct disorder.
He found the accused suffers from a mental health impairment within the meaning of s 4 and she likely did so at the time of the offence. He wrote: [7] This was evidenced by the diagnosis of an affective and psychotic disorder (bipolar I disorder) and that she showed evidence of symptoms consistent with a bipolar I disorder manic episode (of severe symptom severity) with associated psychotic features at the time of the alleged offence. It is the writer's opinion that the onset of [MM's] symptoms of bipolar I disorder predates the alleged offence.
The initial onset of the affective symptoms occurred about 24 months before and were initially characterised by emotional dysregulation, low mood symptoms, irritability, suicidal ideation and associated externalising and self-harming behaviours. The onset of the manic episode with associated psychotic symptoms experienced during the time of the offence likely emerged over the preceding three to four-month period. The manic episode symptoms continued for at least several weeks after until they resolved following treatment with antipsychotic and mood stabilising medication. This opinion about the progression of the accused's symptoms was supported by the assessments of Dr McInnis, Dr Powell, Dr Singh and Dr Srinivasan who all considered that the accused was likely suffering from manic symptoms with associated psychotic features at the time of the offence. [8]
Dr Baker further described the manic episode that likely occurred at the time of the offence as being consistent with the specifier of "severe" in DSM-5 coding. This was evidenced by her experiencing all seven symptoms of mania, more than the three required to make the diagnosis. Additionally, she experienced associated psychotic symptoms (hallucinations and delusions) which were indicative of greater symptom severity. [9]
The foregoing establishes that the accused suffered from a mental health impairment at the relevant time that is within the definition in s 4(1) of the Act.
As to the second limb of the defence, Dr Baker considered that the accused was able to understand the nature and quality of her actions. However, she was not likely able to reason with a moderate degree of sense and composure about whether her actions were morally wrong as she was labouring under the presence of symptoms of acute mania with associated psychotic features (in the context of her bipolar I disorder) at the time of the offence. He explained: [10] At the time of the alleged offence, [MM] was suffering from an acute disturbance of mood (manic episode with associated psychotic symptoms) that impacted on her capacity for reasoning and rational thinking. Arguably, there was a nexus between [her] behaviour at the time of the alleged offence and her symptoms of mental illness. For example, [she] reported experiencing auditory hallucinations including command hallucinations to harm the victim at the time of the alleged offence. At the time of the alleged offence [she] was also labouring under the delusional belief that she was in some form of danger and being persecuted by "the devil". Acute mania can impact a person's thought form and cause disorganised thinking that can lead to severe impairment in a person's capacity to think and act rationally. The presence of these symptoms likely impaired to some extent her capacity to understand not only the implications and consequences of her behaviour but significantly impaired her capacity to cognitively process the wrongness of her actions.
Dr Baker observed that while the accused claimed she had no intention of ending Jason's life, she likely acted with the desired intent to significantly harm him, labouring under the delusional belief that her safety was in jeopardy and in response to command auditory hallucinations during a manic episode. [11]
As to whether the accused's actions on 4 August 2021 were attributable to the use of alcohol, Dr Baker noted the history she provided as including that she was alcohol intoxicated to some extent at the time. However, he noted that the video recordings did not indicate significant impairment of gross motor skills or speech. He considered it unlikely that impairment secondary to (which I take to mean as a result of) intoxication was a factor of greater significance than the primary manic symptoms that manifestly contributed to her mental health impairment at the time of the offence. He noted her history of using illicit substances but not on the day in question and said: [12] While [MM's] substance use may have contributed to an exacerbation of her pre-existing condition (bipolar 1 disorder) intermittently, the writer's opinion is that her symptoms were not likely solely attributable to the physiological effects of alcohol or illicit substance use at the time of the alleged offence.

Report of Associate Professor Scott Harden, psychiatrist

Associate Professor Scott Harden is based at the University of Queensland and has expertise in child and adolescent forensic psychiatry. He provided a report dated 8 June 2023 at the request of the prosecution which followed an interview with the accused at the Forensic Hospital on 11 May 2023. The history she provided him is consistent with that which is recounted in the report of Dr Baker although in some respects it is more detailed. That may be at least in part due to the fact Prof Harden spent twice as long with the accused as did Dr Baker.
The accused's account of symptoms first arising a few years before the offence and their worsening in the few months before was broadly the same as recounted by Dr Baker. She said she had moved out of home in April 2021 as "the voices were telling me mum was trying kill me". [13] As to her alcohol consumption on the day she told Prof Harden she thought she drank about 1½ bottles of spirits and denied using any drugs. Drinking was her way of dealing with the voices but "as I kept drinking they would get louder so I kept drinking". [14] She recalled "Richie" "laying into him and hitting him in the head and then what I remember is that Richie said to me and the boys, 'your turn'". She gave a consistent account of the voices being influential in her conduct during the assault. [15]
Prof Harden described the onset and progression of the accused's mental ill-health in the same way as Dr Baker, including the concerns about her mental state very soon after her incarceration with clear manic psychosis floridly present. [16] He made the following diagnoses: 1. Bipolar Disorder Type I with Psychotic Features, with a differential diagnosis of Schizoaffective Disorder. 2. Post-Traumatic Stress Disorder. 3. Attention Deficit Hyperactivity Disorder (provisional). 4. Polysubstance Abuse, in remission due to incarceration.
Prof Harden was of the opinion that a mental health impairment as defined in s 4 was present at the relevant time. As to the second limb of the defence he said: [17] In my opinion she did not know that the act was wrong as she was deprived of the capacity to reason about the wrongness of the act as perceived by reasonable people with a moderate degree of sense and composure. There seems little doubt on the material that [MM] had a very abnormal mental state at the time of the offence. This mental state was likely to be due to a combination of an underlying mental illness (namely bipolar disorder or schizoaffective disorder) and alcohol intoxication. It seems most likely that a manic psychosis was present at the time of the offence in a severe enough form to deprive her of the capacity to know that the act was wrong. This likely occurred both through the driven nature of the abnormal manic mental state and her reaction to auditory hallucinatory phenomena as well as her probable underlying delusional belief system that became clearer after she was admitted to the youth detention facility and involved persecutory, religious and grandiose beliefs. The nexus between the mental health condition and the offence described where she believed that she would be harmed if she was not involved in the assault which led to the murder (based on her description of auditory hallucinations at the time) is consistent with the material preceding the offence and the material following the offence in terms of her clinical condition.
As to the role alcohol intoxication may have played in her involvement in the offence Prof Harden said: In my opinion on the balance of probabilities her mental state was so abnormal as a result of her mental condition (mania) that she did not know that the act was wrong as she was deprived of the capacity to reason about the wrongness of the act as perceived by reasonable people with a moderate degree of sense and composure even without any effect of alcohol intoxication.
Prof Harden provided an "addendum" report dated 12 April 2024 after having been provided with a large volume of transcripts of recorded telephone conversations of the accused during the time she was in the juvenile detention facility (11 August 2021 - 18 January 2022) as well as some text messages between her and two co-offenders, BE and TB at around the time of the offence. He found nothing of significance that would warrant any change of the opinions previously expressed.
It is noted that Dr Baker and Assoc Prof Harden agreed that the accused was fit to be tried.

Determination

The agreed facts establish that the accused's involvement in the assault upon Jason Galleghan was not spontaneous; she was involved in discussions about the proposed assault between the time of her arrival at the house in Perigee Close at 2.32pm and Jason's arrival about an hour and a half later. I am satisfied she was a participant in a joint criminal enterprise to assault Jason and that the injuries inflicted by her and her co-participants caused injuries that caused his death. The physical elements of murder have been proved beyond reasonable doubt.
The reports of Dr Baker and Prof Harden provide clear and consistent evidence that at the time of the assault the accused had a mental health impairment as defined in s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act. While neither of the experts expressly address whether the disturbance of the accused's thought, mood, volition or perception would be regarded as "significant for clinical diagnosis purposes", this is a compelling inference from their descriptions of the severity of her symptoms (see above, for example, at [36]). The Crown conceded this. [18]
The negativing provision in s 4(3), that a person does not have a mental health impairment for the purposes of the Act if the impairment was caused by the temporary effect of ingesting a substance, or a substance use disorder, has been discounted by both experts.
The second limb of the defence is made out on the evidence of both experts and is accepted in the submissions of both parties.

Conclusion

While I am satisfied that the physical elements of the charge of murder have been proved beyond reasonable doubt, I am satisfied on the balance of probabilities that the accused had a mental health impairment that had the effect that she did not know that the act was wrong in that she could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.

Verdict

For the murder of Jason Galleghan on 6 August 2021 at Doonside I return a special verdict of act proven but the accused is not criminally responsible.

Orders 1. The young person MM is to be detained at the Forensic Hospital Austinmer Adolescent Unit, or such other place as determined from time to time by the Mental Health Review Tribunal, until released by due process of law. 2. The young person MM is referred to the Mental Health Review Tribunal. 3. The Registrar is to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide to the Tribunal the following documentation: 1. a copy of the reasons for verdict and for making these orders; 2. copies of the exhibits, including the agreed facts and the reports of Dr Richard Baker and Associate Professor Scott Harden. The video recordings are not to be provided; and 3. a copy of the family victim impact statement.

Endnotes

Report of Dr Baker, pp9-12
Ibid, p11.306
Ibid, pp19-20
Ibid, pp20-21
Ibid, p21
Ibid, p22
Ibid, p24
Ibid, p25-26
Ibid, p28
Ibid, p27. See also p29.
Ibid, p28
Ibid, p30-31
Report of Assoc Prof Harden, p5.34; p11.1
Ibid, pp6.47-7.4
Ibid, p710-7.28
Ibid, p22.11
Ibid, p23.11
Crown written submissions at [26] 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: 23 August 2024

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