R v Richardson [2013] ACTSC 158

1. The accused is Ms Kerrie-Lee Sonia Richardson. She was born on XX July 1970. She committed the alleged offences, three in all, all being a stabbing of the complainant, Mr Philip Morton, her carer, with a knife on 28 October 2012. She was then aged 42 years three months. She is now aged 43 years.

2. The accused suffers from paranoid schizophrenia. She was first diagnosed as suffering from paranoid schizophrenia during 2000 after having been admitted into the Adult Mental Health Unit of the Canberra Hospital following a psychotic episode. She has since been admitted into the Adult Mental Health Unit of the Canberra Hospital on a number of occasions following psychotic episodes. Also, she has been made the subject of a number of psychiatric treatment orders under which she received treatment by medication for her mental illness. However, about 12 months before 28 October 2012, she ceased to attend her general medical practitioner for the medication prescribed for her.

3. Also, the accused has abused prohibited drugs over a long period. She smokes cannabis regularly and she uses methamphetamine, known as ice, less regularly than she smokes cannabis. Needless to say, her abuse of prohibited drugs has exacerbated her mental illness.

4. Some years ago, perhaps three or three and a half years ago, the complainant and the accused became friends. Then, about two years ago, he became her carer. Then, about 12 months ago, they started a sexual relationship together.

5. At some time before about 3 am on 28 October 2012, after both of them had smoked cannabis, and she had used methamphetamine, an argument started between the complainant and the accused. The argument may have arisen partly from the accused's belief that the complainant was involved in a sexual relationship with a current girlfriend of her former boyfriend and this belief may have arisen from her seeing some abbreviated names and some telephone numbers on the complainant's mobile telephone's contact list. This belief may have been grounded upon her belief that some people, including the complainant, were going to harm her.

6. However the argument started, and whatever the subject of the argument, at some time about 3 am on 28 October 2012 the accused took a knife from the knife block on the kitchen bench and she stabbed the complainant three times with the knife, the first stab being to the back of his left shoulder, the second stab being to his right hand, which also caused a wound to his left hand as he defended himself, and the third stab being to his right forearm. The stabbings did not happen one after the other in quick succession but with some time, up to 15 minutes, between each stabbing, sufficient to allow the complainant to attend to his wounds from the first and second stabbings. However, after the third stabbing, which was the most serious of the three stabbings, the complainant decided to take himself to the Calvary Hospital in Bruce in the ACT for medical treatment.

7. At about 5.15 am the complainant presented himself to the Triage Nurse, Ms N McLaren, at the counter in the Emergency Department of the Calvary Hospital for treatment for the wound to his right forearm. The accused was with the complainant. Ms McLaren noticed that the accused, "was dishevelled and rambling" and she recorded that the accused screamed, "I want him dead" and "I'm on ice" before she, the accused, left the hospital (see Exhibit B). Ms McLaren reported what had happened in the Emergency Department to Ms Monica Dodd, who telephoned ACT Police Operations to report that the complainant had been stabbed by the accused (see Exhibit E).

8. At the hospital, the wounds to the complainant's left shoulder, right forearm and right and left hands were cleaned and dressed, with the wound to the right forearm being closed with two sutures, after an x-ray confirmed the absence of any foreign matter in the wound and of any damage to either bone in the forearm (see Exhibit C).

9. At 8.30 am, after his wounds had been treated, the complainant underwent a forensic medical examination conducted by Dr T Eldridge. In the course of giving a history of what had happened, the complainant told Dr Eldridge that the accused "had ice IV at about 3 pm on 27/10/2012" but "he did not witness her injecting the ice" and that, after stabbing him the third time, she had said, "You deserve it". The complainant told Dr Eldridge that he and the accused had each smoked about six cones of cannabis between about 8 pm on 27 October 2012 and 3 am on 28 October 2012. Dr Eldridge recorded details of the complainant's wounds, which were photographed by police (see Exhibit D).

10. While at Calvary Hospital, the complainant was interviewed about what had happened to him at the hands of the accused by Constable Rohan (see Exhibit J), in the presence of Constable Waring (see Exhibit K). The interview was recorded and a transcript of it is Exhibit A. Constable Waring photographed the wounds to the complainant's left shoulder, right forearm and right hand (see Exhibit L).

11. Meanwhile, at about 7.30 am, Constable Kafer (see Exhibit M), with Constable McMennimen (see Exhibit O), attended at the flat in Watson in the ACT occupied by the complainant and the accused, at where they found the accused "cleaning up blood on the floor". While Constable Kafer searched the flat and photographed blood that could be seen in various places in the flat and a knife with blood on the tip of it (see Exhibit M), Constable McMennimen had a conversation with the accused. Part of the conversation was recorded. A transcript of the recorded part of the conversation is Exhibit R. The transcript does not state the time when the conversation commenced or when it finished. The transcript reveals that some things had been said between Constable McMennimen and the accused before the recording of the conversation commenced. Police arrested the accused and they took her to the City Watch House.

12. Following the arrival of police and the accused at the City Watch House, the accused was assessed by the forensic medical officer and by a member of ACT Medical Health to be unfit to be interviewed by police (see paragraph 24 of the statement of Constable Rohan, Exhibit J), notwithstanding the fact that Constable McMennimen had already had a conversation with her.

13. At the City Watch House, police charged the accused with:

(1) intentionally wounding the complainant, contrary to section 21 of the Crimes Act 1900 (ACT); and

(2) intentionally inflicting actual bodily harm upon the complainant, contrary to section 23 of the Crimes Act.

and, after being charged, she was remanded in custody, bail refused, to appear on 29 October 2012 before a magistrate in the Magistrates Court to answer the charges.

14. Accordingly, on 29 October 2012 the accused appeared before a magistrate in the Magistrates Court in relation to the charges. An order, pursuant to section 309(1) of the Crimes Act, was made by the magistrate that the accused be taken to an approved health facility for treatment for her mental illness. She was taken to and admitted into the Adult Mental Health Unit of the Canberra Hospital. After she had been admitted to the unit, an order was made by the ACT Civil and Administrative Tribunal that she be subject to a psychiatric treatment order. This order was to be in effect until 4 May 2013.

15. On 30 October 2012 the accused was interviewed by

Dr J Reddy. She told Dr Reddy that "prior to the incident, she experienced thoughts that her partner and five other people were plotting against her, and she accused her partner of having liaisons with other women". As a result of the interview, Dr Reddy reported that:

Her mental state examination just after admission, assessed on 30 October, reveals significant persecutory delusions. Her speech was tangential and her effect was labile. She did not seem to be capable of reality testing at that time and was fully convinced that her thoughts about her partner and a few others persecuting her were real. Therefore, she justified her actions of assaulting her partner. She had poor insight into her condition and stated she did not need medication.

16. On 12 November 2012, as she had progressed well, she was free of delusional thinking and psychotic symptoms, her mental health was stable, and she had agreed to take anti-psychotic medication as prescribed, the accused was discharged from the unit into the custody of police (see Exhibit 2).

17. Also, on 12 November 2012, after being discharged from hospital, the accused appeared before a magistrate in the Magistrates Court, and the proceedings were stood over to 11 January 2013, a request was made for the accused to be examined by a psychiatrist of ACT Forensic Services, and she was granted bail.

18. On 10 December 2012 the accused was interviewed by Dr A Barker, consultant psychiatrist, ACT Forensic Services, as requested by the magistrate on 12 November 2012. Dr Barker noted that the discharge diagnosis of the psychiatrist of the Adult Mental Health Unit of the Canberra Hospital was "relapse of schizophrenia, probably due to non-compliance with anti-psychotic" and I interpose "medication and continued use of cannabis and stimulant amphetamine." Dr Barker concluded, after his interview with the accused, that:

Ms Richardson is a 42 year old female who likely suffers from a mental illness, paranoid schizophrenia, as defined by the Criminal Code 2002. The presence of a mental illness was demonstrated by the presence of symptoms consistent with a longstanding psychotic illness, predominantly delusions of a persecutory nature and also occasional auditory hallucinations. From the information available to the writer, it is the writer's opinion within reasonable medical certainty that Ms Richardson has a psychiatric diagnosis as per DSM-IV-TR American Psychiatric Association 2000 consistent with paranoid schizophrenia as well as diagnosis of substance abuse, amphetamine, and a history of substance abuse, cannabis. Furthermore, given Ms Richardson's account of the index offence and the collateral information available in her clinical records, it seems likely that she was experiencing an exacerbation of her psychotic illness at the time of the index offence, precipitated by an extended period of absence from antipsychotic treatment and then compounded further by the use of illicit substances, amphetamine and cannabis. It is also likely that this significantly impaired her ability to make considered and reasonable judgements and that [she] was probably unable to adequately appreciate the wrongfulness of her actions at the time of the offence or act in an alternative fashion.

19. On 10 January 2013 the accused appeared again before a magistrate in the Magistrates Court and, on being arraigned with the charges (see paragraph 13), she pleaded not guilty to each of them and the proceedings were stood over to 20 March 2013 for a case management hearing and her bail was continued.

20. Accordingly, on 20 March 2013 the accused appeared before a magistrate in the Magistrates Court for the case management hearing and, on her adhering to her not guilty pleas entered on 10 January 2013, she was committed to this court to stand her trial and her bail was continued.

21. On 23 May 2013 the accused's solicitor filed a Notice of Election, pursuant to section 68B of the Supreme Court Act 1933 (ACT), signed by the accused electing to be tried by a judge without a jury.

22. On 12 June 2013 I fixed the accused's trial for 23 and 24 July 2013 before me without a jury.

23. Thus, on 23 July 2013 the accused appeared before me to stand her trial. The Crown prosecutor presented an indictment which charged the accused with:

(2) in the alternative to (1), assaulting the complainant occasioning actual bodily harm to him; and

(3) assaulting the complainant occasioning actual bodily harm to him.

On her being arraigned, the accused pleaded not guilty to each charge because of mental impairment. The Crown prosecutor, with the consent of the accused's counsel, tendered the following documents marked Exhibits A to S, and the accused's counsel, with the consent of the Crown prosecutor, tendered the following documents marked Exhibits 1 and 2:

Record of conversation between Constable Rohan and the complainant, Mr Philip John Morton, on 28 October 2012 at the Calvary Hospital.

Statement of Ms Narelle McLaren, nurse, dated 21 January 2013.

Calvary Hospital Emergency Department Record related to the attendance of Mr Phillip John Morton on 28 October 2012.

Forensic Medical Examination Record of Mr Phillip John Morton conducted by Dr James Eldridge on 28 October 2012 at the Calvary Hospital.

Record of conversation between Ms Monica Dodd, of Calvary Hospital Emergency Department, and ACT Police Operations.

Statement of Senior Constable Daniel Wilton Williams dated 24 January 2013.

Statement of First Constable Grant James Moses dated 31 January 2013.

Booklet of 8 photographs of Mr Phillip John Morton and his vehicle taken on 28 October 2012.

Statement of Constable Simon Vincent Rohan dated 6 February 2013.

Statement of Constable Josh Peter Waring dated 21 January 2013.

Booklet of 5 photographs of Mr Phillip John Morton taken on 28 October 2012.

Statement of Constable Russel William Kafer dated 22 January 2013.

Booklet of 10 photographs of the flat occupied by Mr Phillip John Morton and the accused, Ms Kerrie-Lee Sonya Richardson and the knife taken on 28 October 2012.

Statement of Constable David William McMennemin dated 21 January 2013.

Statement of Ms Rebecca Kylie McMahon, Crime Scene Investigator, dated 2 February 2013.

Statement of Mr Simon John Tillmanns, police officer, dated 20 January 2013.

Record of conversation between Constable David McMennemin and Ms Kerrie-Lee Sonya Richardson.

Forensic Psychiatry Report by Dr Adrian Barker of Ms Kerrie-Lee Sonya Richardson dated 10 December 2012.

Psychiatric treatment order issued by ACAT in respect of Kerrie-Lee Sonya Richardson dated 2 May 2013.

Report to Court following s 309 Crimes Act assessment of Dr Jaya Reddy, psychiatrist, dated 12 November 2012.

I heard evidence from the complainant, after which I stood over the trial to 24 July 2013 and I continued the accused's bail.

24. Then, on 24 July 2013 the accused appeared again before me on her trial. On this occasion I heard evidence from Dr Barker and submissions from counsel, after which I stood over the trial to 31 July 2013 for my judgment, and I continued the accused's bail.

25. As I am the judge of the facts as well as the judge of the law, I must state and apply the rules which govern the accused's trial. In short, the relevant rules are:

(1) the Crown must prove its case against the accused, who is presumed to be innocent, to the level of proof beyond reasonable doubt; and

(2) the accused, who relies upon the defence of mental impairment, must prove her defence to the level of proof on the balance of probabilities.

I itemised the rules which govern a usual jury trial in R v Mulcahy (2010) ACTSC 98; R v Hill (2012) 266 FLR 1; R v Butler (2012) 266 FLR 168; and R v O'Brien (2013) ACTSC 42, and Refshauge J referred to them most recently in R v RC (2013) ACTSC 139.

26. The accused admits that she stabbed the complainant three times with a knife on 28 October 2012, the first time to the back of his left shoulder, the second time to his right hand, and the third time to his right forearm, with each stabbing causing a wound, and the stabbing to the right hand also causing a wound to the left hand, and she claims that, at the times when she stabbed the complainant, she was suffering from her mental illness of paranoid schizophrenia such that she was not criminally responsible for her actions. Thus, the Crown has proved its case against the accused beyond reasonable doubt.

27. Section 28 of the Criminal Code 2002 (ACT) provides that:

(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that -

(a) the person did not know the nature and quality of the conduct; or

(b) the person did not know that the conduct was wrong; or

(2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.

(3) The question whether a person was suffering from a mental impairment is a question of fact.

(4) A person is presumed not to have been suffering from a mental impairment.

(5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.

(6) The prosecution may rely on this section only if the court gives leave.

(7) If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must -

(a) for an offence dealt with before the Supreme Court - return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or

(b) for any other offence - find the person not guilty of the offence because of mental impairment.

28 Section 27 of the Criminal Code defines mental impairment to be:

mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli

(3) However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

29 I accept, as the Crown accepts, that, at the times when she stabbed the complainant with the knife, the accused was suffering from a mental illness, that being paranoid schizophrenia, exacerbated by her use of cannabis and methamphetamine.

30 However, the Crown prosecutor submitted that the operative cause of the accused stabbing the complainant three times with a knife was not her mental illness, but rather it was her use of cannabis and methamphetamine.

31 I must consider whether, at the times when she stabbed the complainant with the knife, the accused was suffering from such a mental illness that:

(1) she did not know the nature and quality of her conduct, that is, in other words, she did not know what she was doing; or

(2) she did not know that her conduct was wrong, that is, in other words, she could not distinguish between right and wrong; or

(3) she could not control her conduct, that is, in other words, she did not have any real control over what she was doing.

32 I accept that the accused had been treated over many years with medication for her mental illness and that, at some time some months before 28 October 2012, she had ceased to take the prescribed medication or been taken off the prescribed medication. The complainant told police that, "She's been on medication, been on medication for a while," (see answer to question 29 of Exhibit A), that "the doctors have actually taken her off that medication" (see answer to question 30 of Exhibit A), and that, "She was getting a lot better. The doctors were reducing her medication so she could eventually get off that medication." (see answer to question 36 of Exhibit A). The accused told police that she was diagnosed with schizophrenia when she was aged 34 years (see answer to question 283 of Exhibit R) and that she took medication for schizophrenia but she had ceased to take the medication because, "Now I'm fine" (see answer to question 284 of Exhibit R). Dr Reddy noted "she has had a diagnosis of schizophrenia in the past and was treated successfully. However, she defaulted treatment around a year ago and, hence, has suffered this relapse" (see Exhibit 2). The accused told Dr Barker that "in February 2012, she was gradually weaned off her anti-psychotic medication and was subsequently not receiving anti-psychotic treatment until after the time of the alleged offences in October 2012" (see Exhibit S). I am satisfied that, because she did not receive treatment by medication for her mental illness after February 2012, the accused's mental state destabilised and deteriorated with the passage of time to the point approaching psychosis.

33 I accept that the accused used methamphetamine on the afternoon before and that, she smoked cannabis on the day and night before she stabbed the complainant with a knife, notwithstanding that Dr Reddy recorded, "She denies using any amphetamine prior to the incident" (see Exhibit 2). The complainant told police, "We were having a session of marijuana. She goes, 'Do you want some ice?' She went out and scored some ice, and she used that ice. 3 o'clock that afternoon, she was high. Everything was going really good," (see answer to question 9 in Exhibit A). Later, the accused told Ms McLaren that "I'm on ice" (see paragraph 14 of Exhibit B), although she did not tell Constable McMennimen during their conversation that she had used methamphetamine before stabbing the complainant (see Exhibit R).

34 However, the fact that she had smoked cannabis and used methamphetamine before stabbing the complainant with a knife does not mean that the accused was not acting under a delusion as a result of her paranoid schizophrenia at those times.

35 The first person to see and hear the accused after she had stabbed the complainant with a knife was Ms McLaren. She said that the accused "was dishevelled and rambling" and that she was "hostile in her tone and very erratic in her actions" (see Exhibit B).

36 The next people were Constable Kafer and Constable McMennimen. They were with the accused in her home from about 7.30 to 8.30 am on 28 October 2012. As I have said already, Constable McMennimen had a conversation with the accused, part of which was recorded (see Exhibit R). My reading of the transcript suggest to me that the accused had a memory of what had happened and what she had done to the complainant, but that she was unable to concentrate on what had happened and what she had done with her changing from topic to topic. I consider that her comment "I don't know why you're here" (see answers to questions 162 and 163 of Exhibit R), which prompted Constable McMennimen to say, "Oh, well, there's probably a good reason we're here, KerrieLee", to which she said, "Yeah, I know there is, but, as I said, I don't know what it is" (see answer to question 164 of Exhibit R), reveals that the accused lacked a real appreciation of what was then occurring. I consider that the accused's many references to other people during the conversation with Constable McMennimen reveals that, at that time, she was delusional.

37 After Constable Kafer and Constable McMennimen, were the forensic medical officer and a member of ACT Mental Health, who assessed the accused to be unfit to be interviewed (see paragraph 24 of Exhibit J). Although I do not have anything in writing from either person, I am not surprised, having read the transcript of the conversation between Constable McMennimen and the accused, that she was assessed to be unfit to be interviewed.

38 Then, on 20 October 2012 the accused was assessed by Dr Reddy to have "significant persecutory illusions" and to be "fully convinced that her thoughts about her partner and a few others persecuting her were real". Dr Reddy concluded, as I have said already, "She has had a diagnosis of schizophrenia in the past and was treated successfully. However, she defaulted treatment around a year ago and, hence" - and I emphasise - "this relapse" (see Exhibit 2). I note, as I have said already, that Dr Barker noted that the discharge diagnosis on the accused being discharged from the Canberra Hospital on 12 November 2012 was "relapse of schizophrenia, probably due to non-compliance with anti-psychotic medication and continued use of cannabis and stimulant amphetamines" (see Exhibit S).

39 Lastly, on 12 December 2012 the accused was assessed by Dr Barker, who, after taking an account of what happened on 28 October 2012 and why it had happened from the accused and, after considering the accused's past psychiatric and drug use history, concluded that "It appears most likely that she was experiencing an exacerbation of her psychotic illness at the time," I interpose, of stabbing the complainant with the knife, "precipitated by an extended period of absence from anti-psychotic treatment and then compounded further by the use of illicit substances, amphetamines and cannabis. It is also likely that this significantly impaired her ability to make considered and reasonable judgments and that she was probably unable to adequately appreciate the wrongfulness of her actions at the time of the offences or act in an alternative fashion" (see Exhibit S).

40 Dr Barker gave evidence before me on 24 July 2013. He maintained his opinion contained in his report. He agreed with the Crown prosecutor's suggestion that the accused's smoking of cannabis and use of amphetamine significantly contributed to her mental state on 28 October 2012 and that her mental state on that date would have been less severe had she not smoked cannabis or used amphetamine.

41 I do not see any valid reason to reject the opinions of Dr Reddy and Dr Barker. I consider that everything, to which I have referred, points to the accused being psychotic at the times when she stabbed the complainant with the knife. I accept that her psychosis was the end result of the destabilisation and deterioration of her mental illness because she was not being treated with antipsychotic medication for that illness. I accept that her smoking of cannabis and her use of amphetamine contributed to her relapse into psychosis, but this does not mean that she was not suffering from her mental illness. I consider that, although she knew what she was doing, that is that she knew she was stabbing the complainant with the knife, on the balance of probabilities, she did not know, at the times when she stabbed the complainant with the knife, that what she was doing was wrong. I accept, on the balance of probabilities, that she believed that her actions in stabbing the complainant with the knife were justified because she was acting under a delusion that he and others were plotting to harm her. Also, I consider, on the balance of probabilities, that she did not have any real control over her actions because of her delusion about the complainant and others.

42 Accordingly, I enter a special verdict that the accused is not guilty of each of the charges against her because of mental impairment.

43 I order, pursuant to section 324(1) of the Crimes Act 1900 (ACT), having considered the criteria for detention specified in section 308 of the Act, and taking into account that the accused has been on bail since 12 November 2012 and that she is subject to a current psychiatric treatment order, that the accused submit to the jurisdiction of the ACT Civil and Administrative Tribunal to enable it to make a mental health order.

44 I refer my judgment to the ACT Civil and Administrative Tribunal for its information.

45 I continue the accused's bail pending her attendance before ACAT pursuant to my order.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Solicitor for the Crown: Office of the Director of Public Prosecutions

Solicitor for the Defendant: Legal Aid ACT