REGINA v DOOLAN

REGINA v DOOLAN - [2010] NSWSC 147 - NSWSC 2010 case summary — Zoe

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(3) FACTS 12 The Crown case was that the accused and her children arrived at the home of Howard Dennis on 27 July 2005 with her young daughter and baby. 13 After she arrived, she was noted to be behaving in a bizarre manner which Howard Dennis described as her being "schizo". 14 On the morning of 28 July 2005, the accused was still exhibiting bizarre behaviour. At some point in the morning after the baby went to sleep, Howard and Patrick Dennis left the house to go to the shopping centre at Kelso. 15 The evidence is uncertain as to when they left and how long they were absent from the house. 16 It is clear that when they left, the only adult in the house was the accused. 17 The evidence would tend to indicate that they were absent from the house for up to about one and a half hours. On returning to the home, Howard Dennis knocked on the door and heard the accused calling out "who is it?". He opened the doors with his keys, and on entering the house, noted that taps were running and there was water all over the floor. After going to the kitchen, he then went to the bathroom and saw the baby in the bathtub which had water in it. He said he grabbed the baby and took him out to the lounge room and the accused then took the baby from him. He said he was shocked and rang the emergency 000 number. 18 When interviewed by police on 28 July 2005, Howard Dennis said when he saw the baby in the bathtub that the skin was "real loose and pale". When asked which way the head of the baby was facing in the bath, he said "Straight into the sink" (Q.389). He said there was no plug in the sink hole and that the baby's head went down to the sink. 19 A number of photographs of the house were taken by police and, in particular, of the bathroom, the bath and the sink (photographs 42 to 44, Tab 2, Exhibit A). 20 The facts relied upon by the Crown in this respect, which it contended established beyond reasonable doubt that the death of the child was caused by the actions of the accused, included the following:-

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(a) Professor Greenberg 24 The accused's personal and family history as recorded in the reports of Professor Greenberg and Dr Westmore indicates that she had a turbulent and, at times, a violent family background. The history includes episodes of sexual abuse and the use of illicit substances from her teenage years including intravenous amphetamines and heroin amongst other substances. By the age of 24 years she reported having four children all of which were removed by the Department of Community Affairs as she was unable to care for them. 25 Before the birth of her son, Zane, it is reported that she had episodes of drug induced psychosis and withdrawal seizures from illicit substances. During her adolescence, she was reviewed by a psychiatrist in Bathurst who reportedly diagnosed her with depression and post-traumatic stress disorder secondary to a history of abuse. Professor Greenberg stated that because of the accused's chronic and persistent use of illicit substances, she would qualify for the diagnosis of polysubstance abuse/dependence and that she probably had episodes of drug-induced psychosis. 26 On clinical assessment and review of documentation sent to him, Professor Greenberg was of the opinion that at the time of the incident the accused was suffering from drug-induced psychosis. He considered her to be a woman of limited intelligence and, at the time of the alleged offence, she was suffering from a psychotic mental illness, namely, a disease of the mind precipitated by the voluntary use of intravenous amphetamines and smoking cannabis. He considered that the psychotic illness continued over several days after the alleged offence. 27 Professor Greenberg also considered that the accused probably had a defect of reason at that the time of the events on 28 July 2005. On the information before him he was of the view that the accused did not know the nature and quality of her actions at the abovementioned time due to her disease of the mind and subsequent defect of reason. He was of the opinion that she probably had a defence of mental illness. 28 Professor Greenberg gave evidence on 4 February 2010. He stated that a person taking amphetamines would have all the symptoms of intoxication (hyperactivity):- "But they don't' usually have hallucinations, delusions and certainly they would not last three, four, five, 10 days. They would usually resolve within 12-24 hours … but the duration and intensity of the symptoms continuing for a period of time obviously in a facility where she is not continuing to use the substances would suggest a chemical illness, namely, a psychosis even though it is drug induced in this case." 29 Professor Greenberg, however, stated that he was not completely sure whether the accused had an underlying functional illness such as schizophrenia. In cross-examination, he agreed that, as to reported accounts by the accused of events concerning her son, he could not rely on the accused's accounts, given that she was psychotic at the time and the prescribed medication would have affected her memory. These may also have resulted in a confused memory. He also agreed that her psychotic state would have interfered with her ability to interpret reality and, in particular, the condition of her child. Psychosis, he said, certainly will interfere in rational thinking.

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(b) Dr Bruce Westmore 30 Dr Westmore examined the accused on 11 March 2009. In addition to information elicited at the clinical interview, he also relied upon documents sent to him relating to the accused. 31 Dr Westmore made a differential diagnosis, namely, a drug induced psychosis or "a primary process illness" such as schizophrenia which had been aggravated or precipitated by the use of illicit drugs. 32 The question as to whether the accused suffered from a drug induced psychosis or whether she had an underlying genetic or other condition that was precipitated or aggravated by a drug psychosis is a fundamental one in determining whether or not the accused has the basis for a defence in accordance with the M'Naghten Rules. 33 In a history taken from the accused, Dr Westmore obtained an account of the accused smoking cannabis at the age of 15 and later heroin, amphetamines and the drug known as "ice". According to that history, she commenced using needles around the age of 17. 34 On mental state examination, Dr Westmore noted that the accused had a flat effect and he described "… a past and possibly current history of auditory perceptual disturbances although she did not appear to be responding to hallucinations during the assessment" (report p.5). 35 He stated that the accused would have been affected by the taking of illicit and prescription drugs. He was also of the view that, at the time of the alleged offence, the accused was acutely mental ill and her capacity to know or understand the wrongness of her actions, certainly from a moral perspective and perhaps from a legal perspective, were totally comprised by the presence of her mental illness. He added:- "In summary, therefore, I am of the opinion that Ms Doolan was acutely mentally ill at the time her child died, she was suffering from a psychotic illness and that illness would have totally deprived her of the capacity to understand that she was not to do that act and ultimately that the act was wrong." 36 Dr Westmore gave evidence on 4 February 2010 in the course of which he stated that the symptoms associated with a psychosis which was drug induced or a schizophrenic illness precipitated by illicit drug use were identical and that the pathological processes underlying the generation of symptoms in both conditions was identical. He stated that most drug induced psychoses were "short lived". On the other hand, schizophrenia was a life long illness characterised by exacerbations and remissions. He added (transcript, p.105):- "… If you have an underlying schizophrenic illness, or a vulnerability to develop schizophrenia, if you use illicit drugs you can precipitate an onset of the illness or aggravate a current illness." 37 He considered that the sort of symptoms displayed by the accused from the date of the alleged offence, namely, inappropriate and bizarre behaviour, were psychotic in nature. He noted that similar symptoms had been recorded in relation to an examination when the accused was scheduled on 20 November 2001. Psychiatrists had examined her on 19 November 2001 and had noted her bizarre behaviour and she had expressed bizarre and paranoid delusions to security staff over several days. The relevant Justice Health records in relation to the latter occasion were tendered and became Exhibit 3. Dr Westmore expressed the opinion that the last-mentioned records confirmed psychotic symptoms going back to 2001. 38 In the normal course, he explained, such a patient is stabilised and that medication is reduced and eventually stopped. If the patient redeveloped psychotic symptoms without having re-used illicit drugs, then that would be a factor that confirms the diagnosis of schizophrenia. He said that most drug induced psychoses are transient, short-lived experiences. The longer a patient remains mentally ill after having taken drugs, the greater the index of suspicion that they have schizophrenia or an underlying vulnerability, a genetic vulnerability to that illness. 39 I note at this point that, in the accused's case, the clinical observations over a period of weeks as referred to by Dr Westmore had not been undertaken. 40 Having regard to the earlier history in 2001, Dr Westmore stated that the clinical impression now (with her longitudinal history) would be that it was most likely that she had a schizophrenic illness which was aggravated or precipitated by illicit drugs. He was asked that if, in fact, there was no schizophrenic illness, but merely a vulnerability to drug induced psychosis, whether the mental illness defence was still available to her. He stated that he believed that it was in that the underlying pathology was the same, the chemical disturbance of the brain being identical whether it is schizophrenia or a drug induced psychosis. 41 Dr Westmore referred to the apparent slow recovery made over two or three months as consistent with an underlying genetic or constitutional vulnerability to schizophrenia rather than simply a drug induced psychosis. In a case of drug induced psychosis, the drugs would have disappeared at the earlier stage and slow recovery suggested vulnerability to schizophrenic illness. 42 In re-examination, Dr Westmore stated that persons with a genetic vulnerability seem to get worse each time they use illicit drugs. Accordingly, their chances of avoiding psychotic illness become less over time.

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(c) Dr Martin Patfield 43 Dr Patfield, consultant psychiatrist, saw the accused during the period of her admission at Bloomfield Hospital between 29 July 2005 and 9 August 2005. The accused had been scheduled as an involuntary patient by Dr Marshall in Bathurst. 44 Dr Patfield said that the accused suffered from an acute psychotic illness during the period of her admission. He concluded that that illness had commenced before 28 July 2005. He said that her illness was characterised by hallucinations, delusions and irrational behaviour. 45 I found Dr Patfield's evidence of particular assistance in this matter. He was taken to a report of Mr Peter G Champion, consulting clinical psychologist, dated 16 November 2001 (Exhibit 5). In that report it was stated that on the basis of the accused's then current presentation, there was a significant possibility that she was suffering from a psychotic illness which, given the history, may have been related to drug taking. 46 More significantly, Dr Patfield was taken to the material which comprised Exhibit 3 and which relates to the period November 2001 in which a medical certificate was issued with respect to the accused pursuant to the Mental Health Act 1990 (Schedule 3). Dr Brown certified that on 19 November 2001, she considered that the accused was mentally ill within the meaning of the Mental Health Act and noted the accused's then bizarre behaviour. On the basis of that certificate and Mr Champion's examination of the accused on 14 November 2001, the accused's mental illness had extended over a period of approximately five days. 47 Other records indicated that she required ongoing anti-psychotic medication on an ongoing basis through to 22 November 2001. 48 Dr Patfield, in relation to this past history, observed (transcript, 8 February 2010, p.132 to p.133):- "… What it tells me is she has quite likely been acutely psychotic since 4 November and it's continued over those number … of days until 19 and she, it seems, at least (was) psychotic … So all of that is typical for an acute psychosis …" 49 Dr Patfield accepted that the evidence indicated that she probably was at that time acutely psychotic over a period of three to four weeks after which it started to settle with treatment. 50 It is clear on that history that the applicant's mental illness at that time was not merely a drug induced psychosis. It was Dr Patfield's evidence that a person who becomes intoxicated with amphetamines and who becomes psychotic usually resolve over a period of one to three days. Accordingly, the history of the accused's illness in 2001 went beyond that period and suggested that her condition was other than transitory. 51 Dr Patfield agreed that the history to which I have referred indicated that the accused then suffered from a significant mental illness. Ms Wells put to him (transcript, 8 February, p.134):- "It is quite a different thing to compare to say a two or three day drug psychosis, or a psychosis induced by drug use that just goes away without treatment and so in, this is much more significant in terms of a mental illness? A. Yes. Q. And bearing in mind that this incident and later history about which you know from your own observations in 2005 and the subsequent recurrence of her illness. Does that not indicate to you a vulnerability to psychosis of some kind? A. Yes. Q. Triggered by something, we know not what precisely? A. Absolutely." 52 The fact that the accused was scheduled for a two week period in 2007 with severe disturbances of mood and having been noted as unpredictable, irritable and hostile, in Dr Patfield's opinion was evidence of a further episode of severe psychosis. He agreed, taking into account both the pre-2005 and post-2005 medical history, that the accused had a vulnerability to developing a psychosis. Vulnerability to psychotic episodes, he stated, could arise from schizophrenia or from amphetamine use. Some people, he explained, are particularly sensitive to the psychogenic effects of amphetamines whilst others are quite resilient. 53 The accused's developmental history, which included many years of abuse, neglect and chaos, according to Dr Patfield, constitute circumstances that give rise to instability. Persons with a background of that kind are more likely to become psychotic. 54 Dr Patfield said that an additional factor in the accused's case concerned the fact that her former partner was due to be released from prison and on the history a good deal of her thinking around the time of the alleged offence centred on that fact. Dr Patfield considered that that matter had given rise to a fear in the accused about his release. Episodes of illness with people with schizophrenia, he said, are often related to emotional stress. He said in evidence (transcript, p.143):- "… I suspect personally that it was the coalescence of a number of factors, the taking of speed, the terrifying fear of her de facto being released, she was at a period of … dislocation, not having … housing (and) … although that was common to her, it was a particularly stressful time for her and I suspected all of these things coming together meant that with this use of speed, she became frankly psychotic." 55 He considered that such factors, quite apart from amphetamine use, indicated that there was a vulnerability in the accused to psychosis. I will return to the medical evidence, as necessary, depending upon the conclusion as to causation.

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(3) Accordingly, the circumstances surrounding death were paramount in cases where there are no positive findings. 59 Professor Roger Byard prepared a report dated 1 July 2007 on the possible causes of death in this case. He, inter alia, is Consultant Paediatric Forensic Pathologist to the Child Protection Unit at the Women's and Children's Hospital, Adelaide. 60 He concluded that, in the present case, there were no signs of wrinkling of the skin or frothy fluid in the airways or wetness of the lungs at autopsy. In other words, there were no findings at autopsy to support the diagnosis of drowning. Professor Byard then added (at pp.5 - 6):- "… However, given the difficulties in establishing a diagnosis of drowning that I have outlined above, the autopsy findings certainly do not exclude this diagnosis. I would therefore, agree with Dr Ellis that if the alleged history of being found 'lifeless in a bath full of water' is correct, then the cause of death is most appropriately left as 'Undetermined, consistent with drowning'. However, it is not possible from the pathology to determine whether such an event was accidental or inflicted, or how he came to be in the bath. Similarly it is not possible from the pathology and information provided to exclude prior suffocation, with the body then placed in the bath to simulate drowning. Finally, there was no evidence of underlying organic disease or other injuries that could have caused or contributed to death and toxicological studies were unremarkable. Examination of histology slides did not reveal any additional significant information." 61 In cross-examination, Ms Wells, on behalf of the accused, raised a number of matters concerning the possibility of SIDS being the cause of death in the present case. 62 He was asked, leaving to one side the circumstance in the present case of drowning, the child having been found face down in the water, as to what other possible causes of death may exist where there was no sign of injury or any other physical detriment. Professor Byard replied that there were a number of different disorders that may present in that way. SIDS, he stated, presented with no pathological findings. 63 Professor Byard had been a medical advisor to the organisation known as SIDS and Kids since 1991. That organisation was started by parents who had lost children to SIDS. He had given evidence in relation to five cases of death of children in South Australia whilst sleeping with a parent or grandparent (referred to as "co-sleeping"). 64 He agreed with the statement that babies were most at risk of SIDS or sleeping accidents when co-sleeping and being infants who are less than four months old and babies who are born early, premature or small. Additionally, that there is a very high risk of infant death and sleeping accidents where the baby shares a sofa or couch with an adult during sleep. 65 He also agreed that sleeping with a person who is a smoker is a SIDS risk factor, although the reason is not exactly known. He stated that there were increased risks of respiratory infections and asthma in children exposed to cigarette smoke. The extent of the risk varied with the extent of exposure. 66 Professor Byard also identified other risk factors in relation to SIDS deaths. These included:-

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(c) Principles 75 When the case against an accused person rests substantially upon circumstantial evidence, a jury cannot return a verdict of guilty unless the circumstances are "such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused": Peacock v The King (1911) 13 CLR 619, 634. 76 To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that the accused's guilt should be a rational inference but that it should be "the only rational inference that the circumstances would enable them to draw": Plomp v The Queen (1963) 110 CLR 234, 252; Barca v The Queen [1975] 133 CLR 82, 104 per Gibbs, Stephen and Mason JJ. 77 In Barca (supra) it was also observed:- "However, an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding a prisoner guilty, if the inference of guilt is the only one open to reasonable men upon a consideration of all the facts in evidence" : Peacock (supra) at 661. 78 Although a jury cannot be asked to engage in groundless speculation, it is not incumbent on the defence either to establish that some other inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If a jury think that the evidence as a whole is susceptible to a reasonable explanation other than that the accused committed the crime, then the accused is entitled to be acquitted: Barca (supra) at 105. 79 A circumstantial case depends upon two conditions having been met. First, the primary facts from which the inference of guilt is to be drawn must be proved beyond reasonable doubt. Secondly, the inference of guilt must be the only inference, which is reasonably open on all the primary facts which a jury find or, in a case such as this, the judge. 80 The circumstances which may be taken into account in the process of reasoning involved in a circumstantial evidence case include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. This would include circumstances whose relation to the fact in issue consist in the probability or increased probability judged rationally upon common experience, that would not be unless the fact to be proved also existed: Martin v Osborne (1936) 55 CLR 367, 375 per Dixon J. 81 It was submitted on behalf of the accused that the evidence adduced by the Crown failed to negative an hypothesis which was consistent with innocence.

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(9) CONCLUSIONS ON CAUSATION 106 It is clear, on the evidence, that the issue of causation cannot be determined on the basis of statements made by the accused after the events of 28 July 2005, given the evidence that little or no reliability can be placed upon them. 107 The medical evidence being that there was no physical sign at autopsy, in those circumstances, it is necessary for the Court to consider whether the evidence leaves open a rational basis for an hypothesis that there were other possible causes of death other than drowning. 108 Insofar as particular statements made by the accused might be taken as some evidence that the deceased was dead prior to him being placed or dropped into the bath, for reasons disclosed by the medical evidence to which I have referred, such statements cannot be regarded as, in any way, cogent evidence, and there is no other evidence to support the proposition, as an alternative hypothesis, that the child may have been or was dead prior to it being placed or dropped into the bath. 109 As to the alternative hypothesis relied upon on behalf of the accused, namely, that the evidence admits, as a rational inference, the possibility that the child died by circumstances of suffocation or SIDS or both, there is no evidence of any cogency, in my opinion, that would support that the child died whilst asleep in any such circumstances. 110 The evidence of Professor Byard and Dr Ellis clearly articulated risk factors that have been correlated or associated with infant death arising from that syndrome. The medical research has not established the extent of risk that arises from the existence of one or more or a combination of risk factors. Whilst risk factors may exist, it is clear, from the evidence, that it is by no means the case that such factors materialise merely by their presence or existence. In particular, in the present case, neither Dr Ellis nor Professor Byard were prepared to venture an opinion as to the likelihood or otherwise of death by the deceased through suffocation or SIDS. 111 I have earlier referred to the principles to be applied in determining a circumstantial evidence case and those principles, of course, are applicable on the issue of causation that has been raised in the present case. I have concluded, for reasons I have stated, that the proposition that the child may have died from suffocation or SIDS cannot be said to be any more than speculation. Accordingly, for reasons elsewhere stated, I consider that the Crown case establishes, beyond reasonable doubt, that the death of the child resulted from the acts of the accused.

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(6) The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called "defect of reason" in M'Naghten Rules, must result from an underlying pathological infirmity of the mind , be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to an extraordinary external stimuli . 120 A malfunction of the mind which is prone to recur reveals an underlying pathological infirmity. 121 There is a significant distinction between the reaction of an unsound mind to its own delusions or to external stimuli on the one hand and the reaction of a sound mind to external stimuli on the other: Radford (supra) at 276 per King CJ. 122 In general terms, a recurring state which involves some abnormality will indicate a mind which is diseased or infirm, but the fundamental distinction is necessarily between those mental states which, although resulting in abnormal behaviour, are or may be experienced by normal persons and those which are never experienced by or encountered in normal persons: Falconer (supra) at 85 per Gaudron J. 123 In Radford (supra), King CJ distinguished between "an underlying pathological infirmity of the mind … which can be properly termed mental illness" and "the reaction of a healthy mind to extraordinary stimuli". 124 In Regina v Quick [1973] 1 QB 910, Lawton LJ stated (at 922) that the fundamental concept is of a malfunctioning of the mind caused by disease:- "A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease. Such malfunctioning, unlike that caused by a defect of reason from disease of the mind, will not always relieve an accused from criminal responsibility. A self-induced incapacity will not excuse ( Regina v Lipman [1970] 1 QB 152), nor will one which could have been reasonably foreseen as a result of either doing or omitting to do something, as for example, taking alcohol against medical advice after using certain prescribed drugs … From time to time difficult border causes are likely to arise. When they do, the test suggested by the New Zealand Court of Appeal in Regina v Cottle [1958] NZLR 999, 1011 is likely to give the correct result, viz, can the mental condition be fairly regarded as amounting to or producing a defect of reason from disease of the mind?" 125 In Quick (supra), it was held that the accused's mental state, if it ever existed, was not caused by his diabetes but by his use of the insulin prescribed by his doctor. Such malfunctioning of his mind as there was, was caused by an external factor and not by a bodily disorder in the nature of a disease which disturbed the working of his mind. It was held that the accused, in those circumstances, was entitled to have his defence of automatism left to the jury. 126 In Regina v Meddings (1966) VR 306, the accused suffered from epilepsy, a disease of the mind. He was a heavy drinker of alcohol. After drinking, without provocation, he shot his best friend several times causing him severe injuries. 127 Scholl J referred to Bratty (supra) in which there was evidence that the accused was suffering from psychomotor epilepsy. Scholl J considered that a point of significance in Bratty was Lord Denning's identification of the potentiality of repetition as something which he regarded as important when dealing with the state of mental organs which were disordered and as to which the question arose whether it fell within the M'Naghten Rules. 128 Scholl J took the reference in Bratty (supra) to the phrase "prone to occur" as referring to the possibility of recurrence as a material factor. Scholl J added (at 309):- "… Now that is what I myself in Carter's case (supra) had ventured to think might be regarded as the discrimen between cases of irrational behaviour due to some transient cause affecting the mind, other than disease of the mind, and cases of irrational behaviour due to defective reason for disease of the mind …" 129 A little later, Scholl J continued:- "… I think the question for me is whether the evidence indicates that there is, if Dr Bartholomew's view is accepted, the element present of potential repetition of attack of the kind made by the accused man on 26 December last. I find that the element of potential repetition was regarded as relevant by Lord Denning. It was the discrimen which I sought to apply in Carter's case …" 130 His Honour found that the evidence indicated the element of potential repetition. The medical evidence was to the effect that the epileptic fit had been triggered by the consumption of alcohol. The evidence was to the effect that, if the accused in that case had "a potential susceptibility to epileptic attacks", such attacks could be triggered by various sets of circumstances or drugs such as alcohol. Scholl J concluded:- "… If a man is liable to an epileptic attack by reason of a predisposition whether resulting from injury or some idiopathic cause, then I think it can properly be said he has a disease of the mind … There is a predisposition to, with the potentiability of repetition of, violent outbursts and whether the trigger is alcohol or whether it is surrounding circumstances, whether it is a provocative word or some object which arouses recollection or emotion, does not seem to me to matter. If, in such circumstances, there is induced an epileptic fit as a result of which automatism supervenes, then I think` it can properly be said, and ought properly to be said, that it is the result of a disease of the mind within the M'Naghten Rules. The case seems to me quite different from the case of the ordinary individual who takes too much drink and then acts, it may be, without true volition …" 131 Finally, in Regina v Jennings [2005] NSWSC 789, Kirby J observed:- "30 There will be an abnormality of mind, for the purposes of this defence, where an accused's capacity to understand events or judge whether his actions were right or wrong or control himself, deviates from what may be regarded as normal, given that there is variation in the different ways in which people function. However, the abnormality of mind must arise from an underlying mental or physiological condition. It is not enough if the accused's inability is merely transitory, although it does not have to be a permanent condition. 31 I should, in this context, say something about the relevance of drugs and alcohol. If a person were to become psychotic by reason of drugs or alcohol, and kill someone while so affected, the partial defence would ordinarily not be available, and that because the effects of the self induced intoxication would ordinarily be short lived. The action of killing someone, while so affected, would ordinarily not be the consequence of an abnormality of mind arising from an underlying condition. Rather, on that example, the effects of the alcohol and drugs, which induced the killing, would be transitory. 32 On the other hand, as explained by the medical evidence given in this case, drugs or alcohol may, in certain individuals, trigger an abnormality of mind, that is, bring about some physiological or mental change which is not transitory, but remains even when the effects of the drugs or alcohol have worn off. The partial defence of substantial impairment may, in that circumstance, be open, or indeed, the M'Naghten defence may be available if the impairment were total."

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(11) CONCLUSIONS ON THE DEFENCE OF MENTAL ILLNESS 132 The voluntary ingestion of prohibited drugs, including amphetamines, in itself provides no excuse or justification for unlawful or criminal conduct which is carried out under the influence of such drugs. 133 In the present case, it has been necessary to give close consideration, in particular, to the medical evidence in order to determine whether or not, on 28 July 2005, the accused acted by reason of the effects of an underlying condition resulting in a mental illness at the time she killed the deceased and to separately evaluate the effects of the ingestion of amphetamines. 134 It is clear on the evidence that the accused was affected by the ingestion of prohibited drugs in the hours before and leading up to the death of the deceased. However, on the medical evidence, it is also clear that, at least since 2001, the accused has suffered a number of episodes of drug induced psychosis and that has given rise both to a vulnerability to further psychosis and, as well, an underlying condition independent of the effects of her drug taking on and before 28 July 2005. 135 The medical evidence does, accordingly, establish that, at the time she killed the deceased, she suffered from an abnormality of mind by reason of mental illness. The abnormality of mind significantly impaired the accused's perception of events and her ability to know right from wrong. 136 It is clear from the medical evidence that, leaving aside the effects that the drugs had upon the accused, she could not reason with a moderate degree of composure in the state that she was in on the day the deceased died. 137 The medical evidence, including in particular, that of Dr Patfield, does establish the underlying condition to which I have referred from which the accused suffered, quite apart from the effect of the drugs that she had taken, whether they would have affected her capacity to reason to a very marked extent. 138 Apart from evidence given by Professor Greenberg, the other medical evidence does not go so far as to establish that the accused did not have sufficient awareness of what she was doing when she placed the baby in the bath containing water. However, the medical opinion in this case uniformly establishes that on the probabilities, the accused did not know that what she was doing was wrong, in that she could not reason with a moderate degree of sense and composure that what she was doing was both legally and morally wrong. 139 I, accordingly, conclude that the accused has available to her a defence of mental illness, in that, at the time of causing the death of her child, she did not know that what she was doing was wrong in the sense to which I have referred.

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