R v Khatib

Supreme Court of NSW|2019-12-04|Before: Walton J, Button J

Solicitors: Crown Solicitor's Office (Crown) Legal Aid NSW (Accused) File Number(s): 2018/27323

Judgment

HIS HONOUR: On 12 July 2019, Siham Khatib ("the accused") was arraigned on the count that she, on 25 January 2018, in South Granville in the State of New South Wales, did murder Noura Khatib ("the deceased").
Upon arraignment, the accused entered a plea of not guilty by reason of mental illness. Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the trial proceeded by way of a Judge alone trial. The obligations upon a judge sitting alone are specified in s 133 of that Act.

ISSUE AT TRIAL

It was common ground that between 6.10am and 6.18am on 25 January 2018, the deceased aged 63 years of age was stabbed five times, one of which proved fatal.
It was also not in dispute that the accused, one of the deceased's six daughters, stabbed her mother on 25 January 2018. Nor was it in dispute that the wound occasioned by the accused directly caused her mother's death.
The accused raised a mental health defence, namely, she was mentally ill for the purposes of s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"). The Court must consider whether to return a special verdict in that respect. The Court must then, if a special verdict is returned, decide what should be done with the accused under s 39 of the Act.

The Defence of Mental Illness - General Principles

Justice Button observed in R v Gourlay [2015] NSWSC 67 at [50]: [50] If the Crown were to satisfy me beyond reasonable doubt that the accused voluntarily (without reference to any mental illness) did an act that caused the death of the deceased, I would then turn to the defence of mental illness. Although the defence is referred to in s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act), it is not defined by statute. Its elements were set out well over 150 years ago in McNaghten's Case (1843) 8 ER 718 at [722] …
In my view, the Crown has established beyond reasonable doubt that the accused (without reference to mental illness) voluntarily committed the act causing death.
I turn then to the second consideration, the defence of mental illness. A defence of not guilty by reason of mental illness embodies the common law concept of criminal responsibility as per R v M'Naghten (1843) 8 ER 718 ("M'Naghten"). M'Naghten is authority for the proposition that an accused person is not criminally responsible for an act which would otherwise be a crime if at the time of its commission he or she was labouring under such a defect of reason from disease of the mind so as to not know the nature and quality of his or her act or, if he or she did know it, that he or she did not know that it was wrong.
The second consideration to which his Honour Justice Button referred was whether, on balance, the mental illness defence is made out: see also Hawkins v The Queen (1994) 174 CLR 500 at 512-517; [1994] HCA 28 (especially at 517); R v Minnani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [32]-[33] (per Hunt AJA, with whom Spigelman CJ and Howie J agreed); R v Opie [2014] NSWSC 814 at [12] (per Fullerton J); R v Gourlay [2015] NSWSC 67 at [48]-[50] (per Button J); R v Papley [2017] NSWSC 1068 at [179] (per R A Hulme J).
Thus, in order to establish a defence on the grounds of mental illness, it must be established that, at the time of committing the act causing the deceased's death, the accused was labouring under such a defect of reason, from a disease of the mind, as to not know the quality and the nature of the act that she was doing or, if she did know the quality and the nature of the act, that she did not know what she was doing was wrong.
The onus of proving the defence is on the accused, who must prove it on the balance of probabilities: Mizzi v The Queen (1960) 105 CLR 659 at 664; [1960] HCA 77. If the medical evidence relating to the issue of mental illness is unanimous, that evidence cannot be rejected by the tribunal of fact in the absence of other material which casts some doubt on it: Tumanako v R (1992) 64 A Crim R 149 at 160-161.
A disease of the mind is a disease which is capable of affecting the mind, irrespective of whether it has a mental or physical origin and irrespective of whether or not the defect of reason caused is temporary or permanent. However, it does not include the transitory effects of some application of an external factor such as violence or drugs or a psychological trauma to an otherwise healthy mind (see The Queen v Falconer (1990) 171 CLR 30 at 75; [1990] HCA 49).
A person does not know the nature and quality of his act if he or she does not know the physical nature of what he or she is doing or he of she does not know what he or she is doing was wrong (see The King v Porter (1933) 55 CLR 182 at 188; [1933] HCA 1 ("Porter")). A person does not know the nature and quality of an act which kills another if he or she has so little capacity for understanding the nature of life and the destruction of life that to him or her the intentional destruction life is no more than breaking a twig or destroying an inanimate object. He or she would not know the implications and what it really amounted to: Porter at 188 (per Dixon J).
A person does not know what he or she was doing was wrong when he or she does not know that it is wrong according to ordinary standards of right and wrong adopted by reasonable persons: see Porter at 190 and Stapleton v R (1952) 86 CLR 358 at 367.
The test under the second limb of that definition given by Dixon J in Porter (at 189-190) in the following terms: The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know, in this sense, whether his act was wrong if, through a disease or defect or disorder of the mind, he could not think rationally of the reasons which, to ordinary people make, that act right or wrong? 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 every day standards of reasonable people.
This statement of principle has been approved in numerous cases, including Stapleton v The Queen at 367; R v Pratt [2009] NSWSC 1108 at [20]-[21] (per R A Hulme J); R v Rodriguez [2010] NSWSC 198 at [33] (per Johnson J); R v Lopez [2014] NSWSC 287 at [114] (per Garling J).
In R v Pratt, the relevant principles were summarised by R A Hulme at [19]-[21]: [19] In relation to the concept of a "disease of the mind" which produces such a defect of reason, the law requires that the accused's state of mind must have been one of disease, disorder or disturbance arising from some condition. The condition may be temporary or of long standing. It does not matter whether it is curable or incurable. It must result in the function of the reason, memory or understanding of the person being thrown into a state of derangement or disorder. A defect of reason, memory or understanding involves a disorder of the capacity to reason such as one that prevented the accused from knowing what she was doing, in that she did not know the physical nature or quality of her acts, or did not know that those acts were wrong, that is, wrong according to the ordinary standards of reasonable people in our community. [20] As to whether the accused did not know the acts to be wrong, the question is whether the accused could be said to know, in the sense of appreciating or understanding that the acts were wrong, if through a disease, disorder or disturbance of the mind she could not think rationally of the reasons which, to ordinary people, would make that act right or wrong. [21] A final matter to observe is that if through a disordered condition of the mind the accused could not reason about the matter with a moderate degree of sense and composure, it would be open to find that she did not know that what she was doing was wrong.

FACTUAL BACKGROUND

There was no dispute as to the relevant factual background. There is an agreed statement of facts. The accused gave a lengthy record of interview to the police of about 5.5 hours, after the deceased was stabbed, in which the accused expressly admitted stabbing her mother in answer to a number of questions. There is CCTV footage, together with video footage from a police car entitled "In Car Video", of the events soon after the stabbing. The Court received the assistance of expert evidence from two psychiatrists: Dr Richard Furst, Consultant Forensic Psychiatrist, who was called by the accused and produced a report dated 18 December 2018, and Professor David Greenberg, a psychiatrist, who was called by the Crown and provided a report dated 23 March 2019. Both experts were cross-examined.

General Background

The accused was born in January 1984. She is the youngest daughter of the deceased.
The family home is a two storey brick structure in Pegler Avenue, South Granville ("the premises"). On 25 January 2018, there were 4 persons residing in the premises, namely, the accused, the deceased, Faten Khatib (the deceased's eldest daughter) and Faten's 10 year old nephew.

Prior Medical History

The accused was admitted to Cumberland Hospital on five occasions prior to the stabbing of the deceased.
The accused has a past history of bipolar disorder, having been the subject of an involuntary admission to Cumberland Hospital on 19 February 2011, having been brought to hospital by members of her family.
Her second admission to Cumberland Hospital was on 9 August 2011. She was discharged on 5 September 2011. She demonstrated impaired judgment and insight and was not taking her medication.
Her third admission to Cumberland Hospital was on 1 November 2011. She was discharged on 21 December 2011. She was delusional, threatening and aggressive. Her admission was precipitated by non-compliance with her medication because she was concerned about weight gain with the medication. The Mental Health Review Tribunal placed her on a 6 month community treatment order.
Her fourth admission to Cumberland Hospital occurred on 14 September 2016 and she was discharged on 24 November 2016. She was brought in by ambulance because she was screaming and yelling at 5am and had reportedly discontinued her medication.
Her fifth admission to Cumberland Hospital took place on 1 August 2017, being brought in by ambulance after becoming aggressive and paranoid. She had reportedly stopped her medication almost two years previously because she believed it precipitated weight gain and also wanted to fall pregnant. She was discharged on 6 September 2017.
The medication she was placed on was: 1. Lithium (mood stabiliser) daily; 2. Zyprexa (anti-psychotic); and 3. a Clopixol injection (anti-psychotic) every two weeks.
The accused had a history of being non-compliant with her medication including whilst she was receiving treatment in the community with Dr Khumar in 2016 and Dr Aljuma in 2017.

24 January 2018

Wednesday, 24 January 2018 was described in the agreed statement of facts as a very hot day.
As a consequence of the accused playing outdoors with her nephew for some time, she was sunburnt on both arms at the end of the day.
To remain cool during the evening, the accused stayed in Faten's room, located upstairs, as it had a portable air conditioner. Her nephew was also sleeping upstairs.
The only other air conditioner was located in the downstairs lounge room where the deceased slept (on a couch) and Faten also stayed in an endeavour to escape the heat.

25 January 2018

About 5.30am on 25 January 2018, the accused woke and went downstairs to where the deceased and Faten were sleeping. The accused woke the deceased complaining of her sunburn and asked what she should do. The deceased told the accused to have a warm shower. The accused went and had a shower and afterwards she returned to the lounge room and told the deceased that she felt much better and walked back upstairs.
After this happened, Faten remained in the lounge room, however, she did not fall back asleep. The deceased was still in the lounge room laying down.
About 6.10-6.15am, the accused walked back downstairs and armed herself with a 30cm knife from the kitchen that she had used the night before to cut up some watermelon. She then approached the deceased who was dozing/asleep on the lounge and stabbed her without enquiry or warning.
The deceased began screaming, which got the attention of Faten.
The accused stabbed the deceased twice more to the chest area, resulting in major wounds to the chest and abdomen and lacerations to the deceased's arms.
Professor Greenberg stated there were warning signs leading up to the stabbing such as an absence of sleep and being energetic, both representing mania, but they were not "really paramount in her presentation at that time".
Faten saw the accused standing over the deceased and she tried to pull the accused off the deceased. Faten did not see the knife and thought the accused was choking the deceased. The accused let go of the deceased and ran out of the house leaving the kitchen knife behind, next to the deceased. Faten went after her and saw her run out of the house yelling and screaming at passers-by as she ran up Dellwood street, cutting through a small carpark and onto Blaxcell Street running north in the middle of the road.
Faten came back inside to where the deceased was and saw she was face down on the floor next to where she was laying. The deceased did not respond when Faten spoke to her. Faten saw the knife next to the deceased and turning her over, she noticed the deceased was bleeding heavily from numerous stab wounds and she contacted triple-0 requesting an ambulance. The ambulance service received a call regarding the incident at approximately 6.18am and two ambulances arrived at Pegler Avenue at 6.30am.
Faten had commenced CPR until ambulance and police arrived and they continued trying to assist the deceased. The deceased was pronounced dead at 6.52am as a result of the injuries she had received.
A knife with a 200mm blade and 30mm width was found by police adjacent to where the deceased had been found
After stabbing the deceased, the accused fled from the premises and ran into Pegler Avenue and started screaming saying things like: "He's coming back, call Granville Police, he's coming back, someone's been stabbed, he's coming back, call Granville Police".
She was observed by a neighbour to be running back and forth across Dellwood Street and Pegler Avenue, waiving her arms and screaming for God to "come down" but that he did not want to yet because he has other plans. The accused was stopping cars and changing direction and continued in this fashion for at least ten minutes.
In her ERISP, the accused admitted that she had stabbed the deceased whilst the deceased was sleeping down stairs. She admitted the stabbing on a number of occasions. The accused gave a number of inconsistent reasons for the stabbing, including that her mother had told her to have a hot shower when she had a sun-burn, that her mother had molested her and because she had been used as "a personal slave" by her mother, who had previously tried to kill her. The accused had simply "had enough" after years of abuse. She also said that in her view, God gave her the permission to do so. The accused referred to her mother as the devil and Faten as also being a "devil" and she was living in the devil's house.
Professor Greenberg described the accused as being acutely psychotic at the time of the ERISP. He described her as suffering from delusions. She was disinhibited, overwhelmed and incongruent in her mood. She ranged from smiling and happy to "mercurially angry". She was oblivious to her situation and was unhappy she was not on the news. She described the killing, bizarrely, as "a funny story". All of this was in keeping with her mania and "exactly like it was at the time of the offence".
The state of the accused during the ERISP, as being acutely affected by her mental illness, was, particularly with the aid of Professor Greenberg's analysis, readily apparent. Similar observations may be made regarding the CCTV and the police in car video.
After the accused was taken into custody, she was transferred to Long Bay Prison Hospital for observation and treatment. By 12 March 2018, about 6 weeks after receiving treatment, she was no longer exhibiting psychotic symptoms. She was diagnosed by Dr Natasha Rae, psychiatrist, with bipolar affective disorder, in remission.

Autopsy Report

The Forensic Pathologist, Dr Kendall Bailey, conducted an autopsy on 29 January 2018. She concluded that the direct cause of death was a sharp force injury of the chest. More particularly, she found that there were three significant sharp force injuries (stab wounds) of the chest, abdomen and the left upper arm.
The stab wound of the chest entered the left side of the chest and traversed the heart damaging the ascending aorta and the right atrial appendage. Significant blood loss was associated with the injury. The stab wound of the abdomen included mesenteric and small bowel injury, however, only a small amount of haemorrhage was associated with that wound. There was a significant stab injury of the left upper arm, however there was no associated major vascular damage, and the stab wound terminated in the musculature of the posterior arm.
In addition, there was an abrasion over the right zygomatic region (cheekbone) and a superficial scratch like defect on the left anterior abdomen.
There were also signs of terminal therapeutic intervention, which included multiple rib fractures and bilateral attempted thoracotomies.
Toxicological analysis detected a non-toxic blood level of metformin (diabetic medication).
Dr Bailey concluded that the cause of death was the sharp force injury of the chest. She added that the additional sharp force injuries of the abdomen and upper arm may have contributed in part through blood loss, however the chest injury was fatal of itself.

Psychiatric Evidence

As earlier mentioned, in relying upon the mental health defence, the accused relied upon the opinions of Dr Furst, who produced a report dated 18 December 2018. The Crown retained Professor Greenberg, who provided a report dated 23 March 2019.
Dr Furst diagnosed the accused as suffering from a "bipolar affective disorder", whilst Professor Greenberg diagnosed the accused with "Bipolar I Disorder with recurrent manic episodes". The diagnoses are, in substance, the same. Both psychiatrists defined the characteristics of the illness and both concluded that such an illness would qualify as a disease of the mind.
The psychiatric evidence of both the accused and the Crown is, therefore, unanimous, namely, that the accused suffers from a disease of the mind. In reaching that conclusion, both psychiatrists have taken into account the manifestation of the accused's disease of the mind over the years prior to the stabbing of the deceased, causing the accused to be admitted into Cumberland Hospital for psychiatric treatment on five occasions as I have earlier mentioned. Each of those hospitalisations lasted at least one month. The accused was also, as mentioned, receiving treatment within the community, although, as mentioned, she had often failed to take her medication.
The accused had remained profoundly unwell for up to 6 weeks following her arrest and incarceration, as set out in the summary of the Justice Health records referred to by both Dr Furst and the evidence of Professor Greenberg today (he estimated that it may be expected the accused would take that period of time to respond to medication given her condition when taken into custody).
The evidence was also unanimous that at the time of the commission of the acts which caused the death of the accused's mother she was labouring under a defect of reason due to this disease of the mind. Dr Furst described the accused as demonstrating, "…grossly disturbed and disinhibited behaviour, paranoid delusions, grandiose delusions and religious delusions". This is consistent with observations which can be made of the accused, as I have noted, from watching the ERISP. Dr Furst concluded: In my opinion, Ms Khatib's actions of stabbing her mother in the chest, abdomen and arm whilst she was sleeping on the morning of 25 January 2018 were the direct result of her severe mania with psychotic features, Ms Khatib perceiving her mother to be the devil, believing her own life to be under threat, and feeling her actions were the right thing to do at the timer. She has the mental illness defence available to her.
Dr Furst also stated: Ms Khatib was aware of her actions; however, she was unable to appreciate the wrongfulness of her actions and was probably also unable to control herself at the time in question before the Court. Although she has the partial defence of SIAM available to her, the more appropriate pathway with respect to her long-term treatment needs and psychiatric management would be as a forensic acquittee.
Dr Furst concluded that although the accused had the partial defence of "Substantial Impairment" open to her under s 23A of the Crimes Act, "the more appropriate pathway with respect to her long-term treatment needs and psychiatric management would be as a forensic acquittee."
Dr Furst opined that the primary reason why a pathway arising from a substantial impairment defence was not appropriate was "what flows on afterwards". The accused will be subject to monitoring by the Mental Health Review Tribunal, both during and after custody, with capacity for quick intervention. The treatment in a forensic setting was of a "gold standard" for a person suffering the disease suffered by the accused. The rate of recidivism was low in such cases.
Professor Greenberg stated that the accused was, at the time of her ERISP, demonstrating: … elevated mood, grandiosity, unusual talkative behaviour in view of her circumstances, distractibility, agitation and irritable mood. She appeared as euphoric in her mood…she was disinhibited, overfamiliar and incongruent…She had no insight and claimed that her mental state was 'stable'. At times, her explanations to questions were illogical and irrational.
Professor Greenberg also opined: On balance, I'm of the opinion that Ms Khatib likely has a defence of mental illness available to her and was likely suffering from a mental illness so as not to be responsible for her actions in accordance with the test set down in R v M'Naghten (1943) 8ER 718.
Dr Greenberg also considered the availability of the defence of substantial impairment under s 23A of the Crimes Act. However, he opined that "the correct course to follow", in the case of the accused, is not guilty by reason of mental illness.
Some factors involved in informing the opinion that a finding of a defence of mental illness was preferable to that of, what was described as, the taking of a substantial impairment route, were the accused's diagnosis and its symptoms; the accused's poor insight into her illness; the need for medication and constancy in taking of the same; her need for supervision and the prospect of relapse if not taking her medication.
Professor Greenberg accepted that the accused presented, at this point, a continuing danger to society, if released. However, he qualified that acceptance, noting that he had not seen the accused recently and had not conducted a recent risk assessment. He also opined that most cases of the accused's condition were treatable and that whilst "we can't cure manic depression or bipolar disorder … it can be treated, the symptoms can be controlled". In his evidence, with respect to a condition improving, Professor Greenberg described the treatment as a "step down progress".
In contrast to Dr Furst, Professor Greenberg opined that the effect of the accused's disease of the mind, and its effect on the accused at the time of the stabbing, was that she did not fully know the nature and quality of her act (Dr Furst found the accused was aware of her actions). Professor Greenberg concluded that the accused did not fully know that the act of stabbing her mother was legally or morally wrong. Professor Greenberg's opinion was that the accused had a defence of not guilty by reason of mental illness open to her in accordance with the principles set down in M'Naghten.
The psychiatric material indicated that the accused had a disease of the mind, which as a result, in Professor Greenberg's opinion, resulted in her not knowing the nature and quality of her acts at the time she carried them out or that the acts were morally wrong.

Conclusion: Mental Illness

The unanimous opinion of the assessing psychiatrists was that, at the time of stabbing of her mother, the accused suffered from a disease of the mind, namely, a bipolar disorder described either as a bipolar affective disorder (with mania with psychotic features in January to February 2018) or a bipolar 1 disorder with recurrent manic episode. Both psychiatrists opined that the accused was, at the time of the commission of the offence suffering from a defect of reasoning due to the disease of mind.
Upon Dr Furst's analysis, the accused was aware of her actions but was unable to appreciate the wrongfulness of her actions and was probably unable to control herself at the time of the commission of the offence.
Professor Greenberg considered that the accused did not fully know the nature and quality of her act and did not fully know that the act of stabbing her mother was legally or morally wrong.
Both psychiatrists agreed that because of her defect of reasoning the accused did not know her actions were wrong in the sense earlier described in this judgment.
In the circumstances, and having regard to the aforementioned principles as to the defence of mental illness, I find the accused was mentally ill at the time of the offence. She was labouring under a defect of reasoning caused by a disease of mind and as a result of that disease of mind the accused did not know the nature and quality of her act or know the act was wrong. She must, therefore, be found not guilty of the offence of murder by reason of mental illness.

Section 39 of the Mental Health (Forensic Provisions) Act

Having found the accused not guilty by reason of mental illness, the Court is required by s 39 of the Mental Health (Forensic Provisions) Act to make a determination regarding the accused's immediate future. That provision is in the following terms: 39 Effect of finding and declaration of mental illness (1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate. (2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release. (3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Tribunal of the terms of the order.
Counsel for the accused did not propose that the accused be released into the community at this time. Having regard to the evidence of Dr Furst and Professor Greenberg, I accept that submission. The accused requires ongoing assertive psychiatric care and ongoing assertive input from forensic mental health services.

ORDERS

In those circumstances, I make the following orders: 1. I find Siham Khatib not guilty of the murder of Noura Khatib on the grounds of mental illness. 2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, I order that the accused be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law. 3. I direct the Registrar to notify the Attorney General, the Minister for Health and the Mental Health Review Tribunal of these orders as soon as practicable. 4. The Registrar is to provide the Tribunal with a copy of my reasons and of the reports of Dr Furst and Professor Greenberg.

Amendments 05 December 2019 - Typographical error on cover sheet amended. 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: 05 December 2019

Mental Health (Forensic Provisions) Act 1990(NSW)

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