The accused, Imaueli Jone Degei, is charged with the murder of Kristina Kalnic at Carramar on 25 August 2018.
Because of mental illness he is unfit to stand trial. Following the appropriate procedures under the Mental Health (Forensic Provisions) Act 1990 (NSW), he is before me, sitting without a jury, in a special hearing under s 19 of that Act. As will be seen, the only issue is whether he should be found not guilty by reason of mental illness, a verdict available at a special hearing by s 22(1)(b) of the Act.
The evidence is before me in documentary form in a Crown court book. Included in that book are the statements of a number of witnesses and reports by two respected forensic psychiatrists. The evidence relating to the fatal incident is succinctly, but adequately, summarised in a Crown case statement. The accused is also charged with some lesser offences in the lead up to the incident and the aftermath of it, which are set out in a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).
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The incident
At the time of the fatal incident, the accused was 18 years old and was living with his mother at Airds. He has a history of mental illness, and on 8 August 2018, 17 days before the incident, he had been discharged from the Waratah Mental Health Facility at Campbelltown under a mental health community program.
On Friday, 24 August 2018, the accused left home in the early evening, and spent that night and half the following day in the areas of Canley Vale, Cabramatta and Carramar in the company of two other young men: David Devoe, who had not been known to him, and Zac Laveta, who was known to both of them. It is unnecessary to record his movements over that lengthy period. It is sufficient to say that during this time he consumed alcohol and later smoked cannabis.
At times the accused was observed to behave in a disturbed, apparently irrational, manner. In the Carramar area, where the cannabis was smoked, Mr Devoe noticed that the accused was looking at him strangely. A little later he saw the accused muttering and mumbling to himself, saying something to the effect that he had killed someone. He was also seen to start going through the bags of people waiting at a bus stop. Later again, he punched Mr Devoe for no apparent reason. This gave rise to a charge of common assault on the s 166 certificate.
By this time it was after midday on 25 August. Thereafter, CCTV footage depicts the accused walking in the Carramar area, mumbling and unsteady on his feet. At about 1pm he was observed by a witness, Zivan Gajic, to be walking on Sandal Crescent, Carramar in the middle of the road, swaying and uneasy on his feet. Mr Gajic was the partner of the deceased, Ms Kalnic, and they lived in a unit in a complex on Sandal Crescent. He was outside at the time.
He saw the accused approach the unit complex, where he chased a small cat down the side of a unit block. He returned to the front of the building, where he was shadow boxing for a short time. He then collapsed on his back in the front garden of the units. Mr Gajic phoned the deceased, who was in their unit, and asked her to call police and ambulance because he thought the accused had collapsed and may need assistance.
The accused got up and walked towards the back of the unit complex. He was seen to remove his shoes and continue to walk in his socks. Mr Gajic observed him to look confused. At this time, the deceased emerged from the block of units.
Mr Gajic warned her not to approach the accused in case he was dangerous. However, she did approach him, although Mr Gajic did not observe any conversation between them. She began to walk away from him, but the accused punched her, causing her to fall to the ground, and stomped on her head three times. She was, of course, not known to him and had done nothing to provoke such an attack. The accused then walked past Mr Gajic towards the street. He did so casually, as if nothing had happened, and to Mr Gajic he appeared "disconnected from reality as if he was not aware of where he was or what he was doing".
The incident was witnessed not only by Mr Gajic but also by two other residents of the units, who were nearby in a car.
Police and ambulance were called. The ambulance officers observed a great deal of blood around Ms Kalnic's head and could detect no signs of life. They pronounced her life extinct.
Two police officers arrived. They saw the accused standing a short distance from the deceased and observed him to be swaying from one foot to the other, making a groaning sound, while staring at her. The officers approached him and told him to sit down. He immediately punched one of them, giving rise to a charge of assaulting an officer in the execution of his duty on the s 166 certificate. That officer discharged a burst of OC spray in the accused's direction, but it had no effect on him and he ran behind the units and onto Sandal Crescent. There he was apprehended, but he resisted arrest by kicking his legs and striking out with both his arms. He was handcuffed with some difficulty, and was wrestled by the officers and forced into the rear of a police truck. This conduct gave rise to two charges of resisting an officer in the execution of his duty on the s 166 certificate.
On post mortem examination, the deceased was observed to have extensive bruises, abrasions and lacerations to her face and upper limbs, extensive skull and facial fractures, extensive subarachnoid haemorrhage, and fractures to the right clavicle and one of her ribs. The cause of death was determined to be blunt force head injuries, although marked coronary artherosclerosis and chronic obstructive pulmonary disease were found to be contributory. She was 64 years old.
Upon his arrest, the accused was taken to Fairfield Police Station. There he was observed to be apparently drug affected and, generally, of unsound mind. He told the police that he had smoked two cones of cannabis about three hours earlier. When asked if he had taken any other drugs, he mumbled, "Jesus, I take Jesus everywhere". He was later interviewed at some length in the presence of his uncle as a support person. Among other things, he told interviewing police that he had been discharged from the Waratah Mental Health Facility with a prescription for the antipsychotic medication Olanzapine, but he had not taken it for two days prior to the offence. He said that he had killed the deceased because "God told me that she killed her husband". He later said that he could not remember why he did it.
It is not in dispute, and on the whole of the evidence I am satisfied beyond reasonable doubt, that the accused caused the death of the deceased by deliberate acts. It is at this stage that the defence of mental illness falls to be determined: Hawkins v The Queen (1994) 179 CLR 500.
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The Defence
The effect of s 38 of the Mental Health (Forensic Provisions) Act is that the accused must be found not guilty by reason of mental illness if it is established that at the time he inflicted that violence he was "mentally ill, so as not to be responsible, according to law" for his actions. The accused bears the burden of establishing the defence on the balance of probabilities.
Whether the accused was not responsible in law for his actions because of mental illness is to be determined according to the common law. The principles have their origin in the nineteenth century M'Naghten Rules, which have been consistently applied in modern authority. Expressed in contemporary terms, what must be established is that, due to a disordered state of mind engendered by a mental illness, the accused either did not understand the nature and quality of his acts or, if he did, he did not know that they were wrong. (The nineteenth century formulation uses the expressions "defect of reason" resulting from a "disease of the mind".)
The focus in the present case is upon the second of those alternatives, the accused's knowledge of the wrongfulness of his conduct. The question to be addressed is whether he appreciated that what he did was wrong morally, rather than simply legally: Stapleton v The Queen (1952) 86 CLR 358. As Sir Owen Dixon put it in his summing up to a jury in The King v Porter (1933) 55 CLR 182 at 189-190:
If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.
As I have said, the accused was assessed by two forensic psychiatrists: Dr Richard Furst, engaged by the accused's solicitor, and Professor David Greenberg, engaged by the Crown. Dr Furst interviewed the accused and provided a report in early 2019 and Professor Greenberg did the same a year later, in February 2020. Both experts had been supplied with the prosecution material, and had access to the records of the accused's psychiatric history. The accused was found to be unfit to stand trial by R A Hulme J on 17 September 2020: R v Degei [2020] NSWSC 1267, and also before me is the subsequent report of the Mental Health Review Tribunal, pursuant to s 16 of the Mental Health (Forensic Provisions) Act, which triggered the present special hearing. In their reports both Dr Furst and Professor Greenberg expressed their conclusion that the defence of mental illness is made out.
The records of the accused's psychiatric history examined by the two psychiatrists began in May 2017. They are summarised relatively briefly in Dr Furst's report, and at some length in Professor Greenberg's. It is sufficient to say that the accused was diagnosed as suffering from schizophrenia, demonstrating delusions, auditory hallucinations, thought disorder and paranoid beliefs. Significantly, these symptoms included delusions of a religiose nature, including the belief that he heard the voices of God, the Archangel Gabriel and Lucifer. There were several admissions to hospital, together with periods in the community subject to community treatment orders. His condition was complicated by the abuse of cannabis and methylamphetamine.
He was prescribed a variety of antipsychotic medications, with which he was not always compliant. I have noted that he told police that he had failed to take his oral medication for two days prior to the fatal incident. However, on 22 August 2018, three days prior, he had received a fortnightly injection of another medication, Clopixol. To what extent, if at all, his violent conduct could be attributed to non-compliance with medication I cannot say.
The accused told Dr Furst and Professor Greenberg that on the day of the incident he had been experiencing hallucinations, particularly hearing voices. This, no doubt, is consistent with the observations of unusual behaviour on his part described in the evidence. He reiterated to Dr Furst his belief at the time that God had told him that the deceased had killed her husband. To Professor Greenberg, some 16 months after the incident, he said simply that he had been directed to kill her by the "voices". He also ascribed his conduct to the fact that he was "on drugs", a matter which Professor Greenberg addressed in his report.
Dr Furst affirmed the existing diagnosis of schizophrenia, which he described as chronic and treatment resistant, that is, an illness which had not responded to trials of multiple antipsychotic medications. As to the defence of mental illness, Dr Furst expressed his opinion in this way:
Mr Degei has a history of severe treatment resistant schizophrenia, with ongoing signs of acute psychosis, delusions, hallucinations, thought disorder and a lack of insight at the time of recent assessment. Schizophrenia has been recognized at law as a disease of the mind.
His behaviour and thought processes, both observed and reported by Mr Degei after his arrest, indicate there was no logical motive for his actions in killing the deceased, who was not known to him and was posing no harm to him.
In my opinion, he was likely driven by his religiose and paranoid delusions to kill the deceased, becoming convinced that she had killed her husband as he believed God was telling him this and feeling morally justified in punching her and stomping on her head, actions that proved fatal. He was also insightless into his thoughts at the time being the product of mental illness.
In my opinion, he was aware of his actions at the time but was not aware that his actions were wrong according to the standards of McNaugten/ordinary people, meaning he has the mental illness defence available to him.
Professor Greenbeg also diagnosed the accused as suffering from treatment resistant schizophrenia. He considered that his smoking of cannabis shortly before the incident "likely destabilised his psychotic disorder and also likely had direct intoxication delirium effects on his mental state". However, he did not see this as determinative of the defence of mental illness. He concluded that the accused had "a pre-existing comorbid schizophrenia disorder and acute intoxication delirium at the time of the alleged offences". In the light of that pre-existing schizophrenic disorder, he was of the view that at the relevant time the accused was "labouring under a defect of reason caused by disease of the mind", adopting the language of the M'Naghten Rules.
In his report (clarified by a supplementary report of January 2021), Professor Greenberg expressed the opinion that "at the time of the alleged offences" the accused "likely did not fully know the nature and quality of his act" and, in any event, "did not know that the act was legally or morally wrong" at that time. He concluded that the accused "could not reason with a moderate degree of sense and composure about whether his conduct, as seen by a reasonable person, was wrong…". Accordingly, he saw it as likely that the accused had the defence of mental illness available to him, "suffering from a mental illness so as not to be responsible for his actions…".
This expert evidence is compelling, and is consistent with the other evidence in the case. This was a brutal attack, with tragic consequences, upon an unfortunate woman who was a complete stranger to the accused, for which no rational motive is discernible. It was plainly the product of mental illness. By suggesting that the accused may not have fully known the nature and quality of his act, Professor Greenberg raised the first limb of the M'Naghten Rules. However, I would not find the defence established on that basis and counsel for the accused, Ms David, did not rely upon it. Both counsel agreed, however, that the second limb of the M'Naghten Rules, that is, whether the accused knew that his acts were morally wrong, is made out. This is clearly the case.
Accordingly, I am satisfied that the accused is not guilty by reason of mental illness of the offence charged in the indictment. The Crown prosecutor submitted that I should deal with the offences (sequences 2 to 5) on the s 166 certificate in the same way. It is fair to say that those offences were committed in the course of the same psychotic episode (and it may be that they were included in Professor Greenberg's conclusion that the elements of the defence were made out "at the time of the alleged offences"). The Crown prosecutor noted that Beech-Jones J had adopted that approach in dealing with related offences on a s 166 certificate in R v Deakin [2021] NSWSC 20. Ms David did not seek to be heard on this matter and I consider that to be the appropriate course. Accordingly, the accused should be found not guilty by reason of mental illness of those offences.
Of course, the accused will be detained and will be the subject of what is likely to be a lengthy period of treatment and rehabilitation under the supervision of the Mental Health Review Tribunal.
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Verdict and Orders
I make the following orders:
1. As to the offence of murder charged in the indictment, the accused is not guilty by reason of mental illness.
2. As to each of the charges, sequences 2 to 5 in the s 166 certificate, the accused is not guilty by reason of mental illness.
3. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, the accused is to be detained at a correctional facility or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law.
4. The Registrar is to notify the Minister for Health, as soon as practicable, of the making of these orders.
5. The Registrar is to notify the Mental Health Review Tribunal and Justice Health and Forensic Mental Health Network of these orders, and to provide to the Tribunal the following documentation:
1. a copy of this judgment and the orders;
2. the transcript of the trial; and
3. the medical reports of Dr Furst dated 4 February 2019, and Professor Greenberg dated 23 February 2020 and 27 January 2021.
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Decision last updated: 05 February 2021