R v Kirkman

Procedural aspects

1. Turning to matters of procedure for a moment, on 17 December 2019 the accused was arraigned on an indictment containing a single count in the Supreme Court sitting at Wollongong. The count averred that on 4 October 2018, in Bellambi in the State of New South Wales, the accused murdered the deceased.
2. He pleaded not guilty to the count. It was immediately explained by his lawyer that the only basis upon which a verdict of not guilty was sought was by way of the special verdict of not guilty by reason of mental illness (pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act)).
3. No jury was empanelled, because an order of another judge of this Court that the trial proceed by judge alone remained in force.
4. Thereafter, extensive documentary evidence was placed before me, including unanimous reports of two eminent forensic psychiatrists, one qualified by the prosecution and one by the defence. There were also very comprehensive and helpful facts agreed by the parties, pursuant to s 191 of the Evidence Act 1995 (NSW).
5. Although no person was called to the witness box to give evidence, with the assistance of both legal teams I did my best to ensure that sufficient orality and openness was adopted, so that all interested persons would be able to understand the evidence in the proceedings, and the legal and factual issues to which it gave rise.

Undisputed facts

1. The evidence establishes the following undisputed factual matters.
2. As at 4 October 2018, the accused was aged 29. Of Indian background, he had been adopted as a child, and grew up with his family in Chippendale, an inner suburb of Sydney. He did well at primary school, was good at sports, and his achievements continued into high school. He was admitted into university, and his future surely looked bright.
3. Regrettably, whilst a teenager he began to experiment with prohibited drugs. He first smoked cannabis at the age of 14 years. Notably, he first used the powerful hallucinogen LSD when he was 17 years of age, and it seems that he used it many times thereafter until he was aged about 23. It was at that time that he began to show signs of mental illness, and he proved incapable of continuing his tertiary studies. Later, he moved on to the abuse of crystal methylamphetamine, known in Australia as ice.
4. The precise relationship of cause and effect between his abuse of such drugs and his mental state, and the degree to which there may have been some underlying problem that was brought out or made worse by those substances, is unclear to me. What is clear is that the accused has been mentally unwell for years: he has spent time in a number of mental health units, he has been prescribed psychoactive medication on many occasions, and he has incidentally sought treatment for his use of prohibited drugs in rehabilitation centres. What is also clear is that, as at October 2018, he was living an isolated life, bereft of social support or medical treatment, and, in particular, was not taking any anti-psychotic medication.
5. The accused and the deceased had met in about 2014. It seems that he was employed by her in some role or other for a period of a few months. There was some sort of falling out between them, and their acquaintance came to an end.
6. Far from regarding that as simply part of the "ups and downs" of normal life, the accused became very aggrieved and bitter about it. And it went far further than that: as a result of his longstanding mental illness, he developed a thoroughly delusional belief that the deceased was a person of monstrous evil, who deserved to be, to use his word, "assassinated". Amongst many other wholly unfounded, indeed absurd, beliefs, he considered that the deceased was responsible for the atrocity of 11 September 2001.
7. In December 2017, the accused was arrested pursuant to warrants at Central Railway Station. He possessed no prohibited drug other than cannabis. He was delusional, and demanded a Russian interpreter; with the benefit of hindsight, one can infer that that was because he believed that he was associated with the Russian security forces. He was also in possession of notebooks that show that by that stage he was floridly mentally ill; by way of example, they include a "Death List" with names of people and organisations, including various politicians and the deceased, and, amongst many other disturbed writings, the words, "I see perfectly" and "Venus Two Nothing Two". And those documents also show - again, with the benefit of hindsight - that he was dangerous: the notebooks included such things as a list of addresses, which commences with the address of the deceased; and a page entitled "mission", with the words "Kill Kristie Lee Powell" underneath. Some of what he wrote was grandiose, some of it unintelligible, almost all of it irrational: for example, not only that he would soon be inaugurated as the "Sear [sic] of India", but also that he was "The Oldest Thing in This Universe".
8. The accused was released to bail, regrettably absconded, and as I understand it lost contact with the criminal justice system and any form of medical intervention, compulsory or otherwise.
9. In the meantime, because of his entrenched beliefs, he had been harassing the deceased and those close to her by way of social media. As for her own reaction to him, on the one hand the deceased was (entirely understandably) afraid of the accused, and took steps to insulate herself from his harassment; on the other hand, she thought that he was reasonably harmless, not least because he was repeatedly at liberty.
10. By early October 2018, the accused had made his way to Melbourne, where he stayed in a youth hostel. There he purchased a pair of gloves and a particular knife. By that stage, I am satisfied, he had decided to bring the life of the deceased to an end, in accordance with his deeply held delusional beliefs. He was also by then acting in accordance with auditory hallucinations that were commanding him to kill her.
11. Thereafter, he took a long, circuitous route by train from Melbourne to the railway station closest to the home of the deceased. He took some steps preparatory to the homicide, such as secreting a bag at a location where he could retrieve it later, and putting coveralls on over his clothes. He approached her home on foot, no doubt quietly, broke in, and committed the fatal acts that he was convinced morality demanded. Afterwards, as I have said, he promptly departed, and took simplistic steps to hide what he had done.
12. The accused was located by police a few days later, hundreds of kilometres away, at a location frequented by homeless persons. A notebook was seized that showed that the killing of the deceased had been the subject of simplistic but detailed planning. After being arrested on a charge of murder, the accused openly admitted what he had done, and explained that it had been a "military operation". He engaged in a lengthy recorded interview with police that was verbose, rambling, repetitive, obsessive, delusional, and quite open about the killing. During that interview, he expressed not the slightest shame nor guilt; rather, he was keen to inform the police of what he regarded as his significant achievement.

Medical matters

1. The accused has been in custody ever since. He is receiving expert psychiatric care, is medicated, and is currently held in a special section of a gaol for prisoners with mental conditions.
2. He was seen by the two psychiatrists some months ago, after he had been incarcerated for at least six months. In summary, although his symptoms had abated to a degree, at the time of both interviews, and despite his treatment and regular medication, he showed no insight at all into his mental illness; still believed that he would shortly be rescued from custody and spirited away by the "Chinese Navy"; was still hearing voices; and remained reasonably sure of the righteousness of his acts.
3. Both psychiatrists expressed the opinion that, on balance, the accused is fit to stand trial, focusing as that legal issue does on his condition as at now. But each of them also expressed the firm opinion that the accused has the defence of mental illness available to him, focusing as that does on the mental state of the accused as at the time of the fatal acts. Indeed, the psychiatrist qualified by the defence was of the view that the special verdict is "clearly" open.
4. Each of those expert witnesses accepted on balance that, at the time of the homicide, the accused was suffering from a disease of the mind. One psychiatrist classified it as schizophrenia; the other as a schizoaffective disorder. But little turns on that distinction, because each of them was of the view that the accused was, at the time of the killing, psychotic, which I understand to mean divorced from reality in a profound way.
5. Each of them was also of the view that the accused suffered from a defect of reason, in that he was incapable of telling the difference between reality and delusion, with the result that he had constructed a detailed world that was patently divorced from fact, and deeply irrational.
6. Each of them expressed the view that the accused did appreciate the nature and quality of his acts, in that he well knew that he was stabbing a fellow human being to death in her own home.
7. And each of them also took the view, on balance, that the accused appreciated, at least in some sense, the legal or procedural wrongness of his actions. That was based on the fact that, as I have said, he took some steps to hide his acts beforehand and afterwards, and he also appreciated that he may be incarcerated, albeit until the fantastical foreign military intervention had taken place.
8. But importantly, each of the eminent psychiatrists expressed the view that the accused had no appreciation of the moral wrongfulness of what he was doing at the time he did it. That is because, as I have explained, the accused not only believed that he was commanded to do what he did, but also believed that it was an act of social value and righteousness, whereby he was bringing the crimes of a thoroughly evil person to a permanent end.

Determination

1. Turning now to the findings that underpin my verdict, and that are based upon all of the evidence that I have summarised over the past many minutes: there can be no doubt that the acts of the accused caused the death of the deceased. Nor can there be any doubt that those actions were willed and deliberate movements of his muscles. At this stage, I am not legally required to go further with regard to any proven intention: Ryan v R (1967) 121 CLR 205; Hawkins v R (1994) 179 CLR 500; and R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226.
2. As for the defence of mental illness (first spoken of in M'Naghten's Case, Re (1843) 8 ER 718, and explained in more modern and refined terms in R v Porter (1933) 55 CLR 182 and Stapleton v R [1952] HCA 56; (1952) 86 CLR 358), I am amply satisfied on balance that this man has had a disease of the mind for many years, and that he was suffering from it very acutely as at 4 October 2018.
3. I might add that I have discussed with both lawyers the question of what role prohibited drugs could have played on the evening, in light of my appreciation that neither direct intoxication, nor indirect temporary after-effects of ingestion of prescribed or prohibited drugs, can constitute a disease of the mind at law. In that regard, there is no evidence that the accused was intoxicated or otherwise temporarily affected by prohibited drugs at the time of the killing, and indeed there is some evidence to suggest affirmatively that he was not. But even if, for the sake of argument only, he was intoxicated or affected by drugs to some degree, and it was therefore incumbent upon me to "hive off" and disregard the effect of those substances (see Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210), I would nevertheless remain satisfied that the underlying disease of the mind that I have discussed was present and active at that stage.
4. I am also well satisfied on balance that that disease led to a defect of reason. That is not merely established by the opinions of the two experts, both of which I accept. It is also shown by the things the accused has written; the things he has said to police; the things he continues to believe; and, most fundamentally of all, the utterly senseless motivation for this act of brutal fatality.
5. Turning to further aspects of the defence, I am well satisfied that the accused appreciated the nature and quality of his act. Indeed, he achieved precisely what he intended to achieve - a so-called assassination - and thereby showed his appreciation that the deceased was a fellow human being, and that he was bringing her life to an end. This part of the defence has not been established.
6. I also find that the accused appreciated, on a superficial level, the legal wrongfulness of his actions. I say that because of the steps taken before the homicide to hide it (for example, the purchasing of the gloves that were worn at the scene, no doubt to avoid leaving incriminating fingerprints or DNA); the steps taken afterwards to hide it (for example, his prompt departure from the scene, the changing of his clothes, his arrest hundreds of kilometres away), and the appreciation by the accused that incarceration would follow if he were detected (even though that appreciation also included a belief in subsequent rescue that was pure fantasy). I do not believe that this aspect of the defence has been established either.
7. I am satisfied, however, affirmatively and firmly, that the accused had no appreciation whatsoever of the moral wrongfulness of his actions. To the contrary, I am of the opinion that the accused believed that he was bringing to fruition a plan that was praiseworthy, in some sense preordained by destiny or higher forces, and to the benefit of humankind.
8. Far from appreciating on any moral level that he was committing a wrong in the form of the most serious act known to the criminal law, the accused believed that he was doing something utterly right. This final necessary leg of the defence is amply established.

Conclusion

1. In short: I am satisfied beyond reasonable doubt that the accused voluntarily committed an act that caused the death of the deceased.
2. I am also satisfied on the balance of probabilities that, at the time he did so, he was suffering from a disease of the mind, that led to a defect of reason, that led in turn to him failing to appreciate the immense moral wrongfulness of his actions.
3. For those reasons, I shall shortly return a special verdict of not guilty by reason of mental illness. I shall discuss the meaning and consequences of that verdict, and other aspects of this modern Australian tragedy, once I have received the victim impact statements from family members of the deceased foreshadowed by the Crown prosecutor.

Verdict

1. Bhanu Alan Kirkman, on the count alleging that on 4 October 2018 you did murder Kristie Powell, I return a verdict of: not guilty by reason of mental illness.
2. [Further submissions made; edited victim impact statements tendered and read.]

Meaning of verdict

1. I wish now to take a moment to explain the meaning and effect of my verdict for the benefit of all interested persons, not least because such a verdict is sometimes misunderstood as constituting a complete acquittal. It most certainly is not.
2. First, it is true that the accused will not be held criminally responsible for his actions, as a result of his mental state on the evening of 4 October 2018. But there is no doubt that his physical acts directly caused the death of the deceased.
3. Secondly, the fact that I have entered a verdict of not guilty of a special kind does not reduce for a moment the tragedy that this matter constitutes, and the recognition of that fact by the criminal justice system.
4. Thirdly, it is true that, as a matter of theory, s 39(1) of the Act permits the immediate release, in limited circumstances, of a person found not guilty on the ground of mental illness. But in this case, there is not the slightest question of that being a possibility. Quite the contrary: the effect of my verdict, and the orders that I will make in a moment, will be that the accused will be committed to the long term care and control of the Mental Health Review Tribunal. Pursuant to s 43(a) of the Act, that Tribunal must not release the accused into the community unless and until it is satisfied that the accused will not seriously endanger any person, including himself.
5. Finally, I have now read carefully and heard the victim impact statements from the mother and sister-in-law of the deceased. I have also noted that many persons have been present in the public gallery throughout this trial, and I infer that most are family and friends of the deceased. I accept without hesitation that this brutal, horrific, literally senseless, killing of an innocent woman in her own home, and in the presence of her baby son, by a psychotic person determined to fulfil his goal, has constituted a waking nightmare for those who love her, and who try every day to battle on without her.
6. Of course, my knowledge of the life and character of Kristie Lee Powell is limited, because these proceedings have of necessity been focused upon the life and mind of the accused. I will say, however, that I know from my own experience of life of the special love and kindness often possessed by people who care about defenceless animals, and who devote time and trouble to looking after them, as Ms Powell did.
7. There is little I can usefully say, I think, to the survivors at the conclusion of this legal process, except perhaps to extend my condolences to them on behalf of the Supreme Court of New South Wales, to congratulate them respectfully on their courage in the face of this devastating blow, and to express the hope that the end of these proceedings today will provide some measure of relief in their suffering.

Orders

1. I make the following orders: 1. The accused, Bhanu Alan Kirkman, is to be detained at such place as may be determined from time to time by the Mental Health Review Tribunal. 2. The Registrar must notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by me. 3. The Registrar must notify the Mental Health Review Tribunal and Justice Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by me, and to provide those bodies with the following documentation: 1. A copy of these reasons for verdict and my orders; 2. A transcript of these proceedings; 3. A copy of the exhibits tendered at trial; and 4. A copy of the edited victim impact statements.

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