R v Pratt

Supreme Court of NSW|2009-10-15|Before: Hulme J, Mr P

DECISION : Not guilty on the grounds of mental illness.

CATCHWORDS : CRIMINAL LAW - murder - judge alone trial - defence of mental illness - murder of elderly couple - chronic paranoid schizophrenia

Criminal Procedure Act 1986 LEGISLATION CITED : Mental Health Act 1990 Mental Health (Forensic Provisions) Act 1990

CASES CITED : Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 R v M'Naghten (1843) 8 ER 718

PARTIES : Regina Tracey Lee PRATT

COUNSEL : Mr P Cattini (Crown) Mr A Haesler SC (Accused)

SOLICITORS : Solicitor for Public Prosecutions Legal Aid Commission of NSW

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT 1 HIS HONOUR: Tracey Lee Pratt is accused of the murders of Kenneth and Margaret Keyte at Batehaven on or about 9 August 2008. She has elected to be tried without a jury: s 132 Criminal Procedure Act 1986.

2 At the relevant time Ms Pratt was a 42 year old women living with her husband and son in a unit at 3/328 Beach Road. Mr Kenneth Keyte, aged 87, and Mrs Margaret Keyte, aged 70, lived in a house at 316 Beach Road. They were described by witnesses as "dear friends", "lovely people", "community spirited", "people who only had goodness in their hearts", and "people who would go out of their way to help people". Mr and Mrs Keyte both died of multiple blunt force injuries that were inflicted upon them in the lounge room of their home at some time on the night of 9 August 2008. The accused accepts that she was the person responsible for inflicting those injuries.

3 It is unclear how she gained entry to the house. There were no signs of forced entry. She recently told a psychiatrist, Professor David Greenberg, that she was invited into the house. I am doubtful about that but do not need to make any finding. Mr and Mrs Keyte had either been in bed or were about to go to bed. They were each bludgeoned with a variety of objects in what must have been a sustained, savage, frenzied and brutal assault. There is a suggestion in the evidence that they did not die immediately but it is clear that they were left for dead.

4 Family members raised concern the following evening and the police were called. An officer had to break open the front door as the house was secured. It was then that the bodies of the deceased were discovered and the police investigation commenced. Although there were some items of property taken from the house, none was of any real value. Indeed, there was property of value left untouched, such as Mrs Keyte's purse containing cash and cards. Given how well regarded the deceased were in the community the motive of the perpetrator must have been something of a mystery confronting the investigators. Finger and palm prints had been left in a number of places. It was, somewhat ironically, fortuitous that on 21 August 2008 the accused came under police notice in an unrelated matter. Her fingerprints were taken and were found to match those left at the crime scene. Subsequent DNA analysis further confirmed that she was the perpetrator. I am satisfied beyond reasonable doubt that it was the accused's deliberate acts which caused the death of both Mr and Mrs Keyte. The Crown case that she did so is overwhelming.

5 The accused was born in 1965. She was raised by her grandparents. She married Andrew Pratt in about 1990. Mr Pratt's evidence is that everything in the relationship was fine until 1998 or 1999 when both of the accused's grandparents died within a short time of each other. He reports that the accused's mental health deteriorated from that point.

6 In the latter part of 2006 her behaviour became quite bizarre. On 13 November 2006 she was admitted to the Chisholm Ross Centre, the acute psychiatric unit of the Goulburn Base Hospital, after having made homicidal threats whilst intoxicated with alcohol. Upon admission she was found to be "overtly psychotic, believing there was a conspiracy involving prominent figures and the military to play mind games with her repressed memory". A diagnosis of "First Episode Psychosis, Substance Abuse Disorder" was made. She was prescribed medication and detained as an involuntary patient until discharged on 5 January 2007. At that time she was no longer openly talking about delusional beliefs. However, although she said that the medication had helped, she maintained a belief that she did not have a mental illness.

7 A Community Treatment Order under the Mental Health Act 1990 was made. It required the accused to take medication as prescribed by her treating psychiatrist. She was also required to attend the Community Mental Health Service in Batemans Bay on a fortnightly basis and to attend appointments with her psychiatrist as required. There were a number of other measures designed to assist her, including identification of any pending relapse.

8 On 22 May 2007 Dr Nina Lees, consultant psychiatrist, reported that the accused had made a substantial recovery. In part this was because of her abstinence from alcohol and cannabis. She had expressed a willingness to continue in psychiatric treatment although with a preference for some reduction in her medication. In view of these matters Dr Lees did not recommend an extension of her Community Treatment Order. She advised a slow reduction in her medication and hoped to review her progress in two to three months time.

9 The evidence before me indicates that she subsequently failed to attend a number of appointments and when she failed to attend one made for 29 August 2007 her file was closed. It is apparent that the accused ceased taking her medication soon after the monitoring of her compliance under the Community Treatment Order had ceased.

10 The accused's mental health deteriorated quite significantly in the month or so before the killing of Mr and Mrs Keyte. She came into contact with them by virtue of the proximity of their homes. On 16 July 2008 Mr Keyte rescued the cat that belonged to the accused's family from a rabbit trap. The cat was unharmed and returned to the accused's home. Rather than expressing gratitude, the accused abused and threatened him. On another occasion around the end of July Mr Keyte had gone to the accused's home. He fed the chickens at a nearby home where he mowed the lawns . Mr Andrew Pratt was aware of this and used to leave his family's food scraps out for Mr Keyte to collect and use for chicken feed. On this particular occasion, however, the accused abused him and threatened, "I will get you if you come back around here". On occasions when the accused walked past the home of Mr and Mrs Keyte she would call out to them in abusive terms.

11 The accused's outbursts and bizarre behaviour were not directed solely at Mr and Mrs Keyte. For example, a police officer attended her home on Friday 8 August, the day before the murders, in order to serve some documents upon Mr Pratt. Mr Pratt was not home. After a brief conversation with the accused he turned to leave but heard the accused yelling to herself, "Police, court, 000, police court 000, police court 000". He turned and saw her with a phone to her ear saying, "Hello, there are two blokes in my house who said they are police". Mr Daniel Gardner's evidence is that he moved into a unit in the same premises as the accused's family. When he went to introduce himself to the accused he was told to "fuck off". On the next occasion he saw her she told him, "I told youse you weren't allowed here. If I see youse here again I am going to fucken kill ya". Mr Gardner also reported that on the day after the murders, the accused approached his partner at the shopping centre and threatened to shoot her.

12 The accused's bizarre behaviour continued. On 21 August 2008 she went to the home of a neighbour, banged on the door, demanded that it be opened and asked about the whereabouts of "Toby", claiming that he was her husband. When the woman's partner arrived home and opened the door the accused burst in and tried to attack the woman. The husband intervened and restrained her but she proceeded to kick and spit at him until the police arrived and took her away. This was the incident that gave rise to her fingerprints being taken.

13 After the fingerprint match was made the accused was arrested on 24 August 2008. She told the arresting officers, "I have not committed any murders". At the police station when she was asked if she was prepared to be interviewed she said, "No, I will not be interviewed until I can speak to ICAC".

14 It is clear from the evidence I have just reviewed that the accused's behaviour in the period both before and after the killing of Mr and Mrs Keyte was consistent in that it was inappropriate, bizarre and deluded. It demonstrates that she was out of touch with reality.

15 The only real issue in this trial is whether the accused has available to her the defence of mental illness. It is a matter for her to establish not beyond reasonable doubt but on the balance of probabilities: Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659.

16 Section 38(1) of the Mental Health (Forensic Provisions) Act 1990 provides: If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

17 The Act does not define the term "mentally ill". That is something that must be determined in accordance with the M'Naghten Rules laid down in R v M'Naghten (1843) 8 ER 718: Every man is to be presumed to be sane; and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proven ...; that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and nature of the act he was doing; or if he did know it, that he did not know what he was doing was wrong.

18 To establish that the accused was mentally ill so as not to be responsible according to law for her acts of killing Mr and Mrs Keyte she must show that, as a result of a defect of reason from a disease of the mind, she did not appreciate the nature and quality of those physical acts or that she did not know that those acts were wrong.

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.

22 The determination of this issue of whether the accused was mentally ill at the time of the offence turns on the evidence of two eminent forensic psychiatrists.

23 Dr Olav Nielssen interviewed the accused at Long Bay Prison Hospital on 7 May 2009. He also reviewed a number of witness statements, the medical records of the Greater Southern Area Health Service and the accused's Justice Health medical record (which I should explain to those members of the public present is the gaol medical record). Dr Nielssen provided a report of the history he obtained from the accused, his assessment of the documentary material, and the opinion he reached from a consideration of that material.

24 The history obtained by Dr Nielssen included that after the accused ceased taking her medication in 2007 she experienced the recurrence of symptoms of mental illness. I do not intend to review the entirety of what the accused told Dr Nielssen but it included that she experienced hallucinations of voices. She claimed to have talked to herself and to have had conversations with the television. She had a belief that Mr Keyte was stalking her. She thought he might have been a pervert and that he was trying to hurt her children. The accused claimed to remember only "bits and pieces" of the killings but she did say, "I was really loud and angry ... I killed them with my bare hands and foot".

25 Dr Nielssen made a diagnosis of "Chronic treatment resistant schizophrenia" which he said was made on the basis of the history of typical symptoms of schizophrenia, the corroborative history from her husband's statement and the medical records, as well as the accused's presentation at the interview with the doctor. He also diagnosed a "Substance abuse disorder", noting her history of alcohol abuse and some use of cannabis. He noted her history of drinking some alcohol on the day of the offence which he thought indicated she could have become more aggressive.

26 Dr Nielssen found it puzzling that the accused was unwell for so long before receiving initial treatment in 2006-2007 and then, once identified as having a psychotic illness, was lost to follow up by the local mental health service on the expiry of her community treatment order.

27 Dr Nielssen concluded his report as follows: I believe Ms Pratt has the defence of mental illness available to her for the offences, she was acutely mentally ill at the time of the offence and her behaviour was a direct consequence of the effect of symptoms of mental illness. She was affected by an acute exacerbation of schizophrenia, which is recognised in law to be a disease of the mind. She had a defect of reason in the form of florid delusional beliefs, including that Mr Keyte was a "pervert" who planned to harm her children as well as beliefs arising from hallucinated voices and messages she took to be from television.

Ms Pratt was probably aware of the nature of her actions in killing two elderly people. However, her acutely psychotic state manifested with grossly disorganised thinking and irrational anger and I believe she was unable to recognise that her actions were morally wrong or reason with sense or composure about the likely consequences of her actions.

28 Professor David Greenberg conducted an assessment of the accused when he interviewed her at the Silverwater Women's Correctional Centre on 10 and 23 August 2009. He had the opportunity of reviewing the report of Dr Nielssen, the reports from the Chisholm Ross Centre and the brief of evidence. He received from the accused a history of hallucinatory and delusional thinking. For example, she told him that she had thought the Batehaven Pathology Lab had been putting blood into her food and drinks, that her house was being bugged and that she and her family would reincarnate. She was scared that the moon would hit the planet and she got messages from the television that the earth was about to end. She had thought that "somebody", who may be Mr and Mrs Keyte, were trying to steal her son. She claimed that Mr Keyte was threatening her livelihood and her life and that he was stalking her. She thought Mrs Keyte was in collusion with him. She referred to Mr Keyte coming around to her home to collect vegetable scraps to feed chickens but he reminded her of someone she thought had molested her as a child.

29 The accused told Professor Greenberg that on the night of Saturday 9 August 2008 she went around to the Keyte home in order to tell Mr Keyte not to come around again. He reported that she said that after she got up to leave she had a loss of memory and had no recall of what she did. Her next recall was seeing both victims lying deceased on the floor. She realised that she was responsible. She hid her shoes and other items in the bush in a neighbour's yard, planning to get rid of them later. She could not recall why she took the items that had been found in the pillow case in the neighbour's yard.

30 She denied that she had previously threatened to harm Mr and Mrs Keyte and claimed that she had never abused Mr Keyte, rather that she was polite to him on the street. There is overwhelming evidence to the contrary.

31 She told Professor Greenberg that she had consumed about eight schooners of beer prior to offences. At his first interview with her she denied using any illicit substances but in the second interview she said she had smoked two or three joints of cannabis that day. I note that the accused told Dr Nielssen that she consumed two or three large bottles of beer on the day of the killings and had not had any cannabis for about three years. In the evidence I heard this morning it was indicated that the reason for these inconsistencies was likely to be that she had an inaccurate memory of her alcohol and drug consumption but that did not impact upon the reliability of the account she gave as to her mental thoughts and processes at the relevant time.

32 Professor Greenberg made diagnoses of Chronic Paranoid Schizophrenia, Alcohol Abuse/Dependence and Cannabis Abuse.

33 He was of the opinion that the accused was suffering from a disease of the mind at the time period surrounding the offences. She was suffering from an acute psychotic episode associated with her Chronic Schizophrenic Disorder. She was suffering from paranoid delusions involving Mr and Mrs Keyte. He based his opinion not only upon what the accused told him but also upon various witness statements including that of Mr Pratt and the medical records from the Chisholm Ross Centre.

34 Professor Greenberg was of the view that the accused was suffering from a defect of reason in that she was suffering from a variety of delusions and auditory hallucinations which clouded her logical thinking process. He was of the opinion that she likely felt that she was acting in a morally justifiable manner when she committed the acts of homicide. He was also of the view that she did not know the moral wrongfulness of her actions because of her defect of reason flowing from her severe paranoid delusional state. He thought that she likely reasoned that she was acting in self defence because of her defect of reasoning involving paranoid delusions about Mr Keyte trying to harm her and her children, and Mrs Keyte colluding or being part of the perceived molestation process.

35 Professor Greenberg was of the view that the accused probably understood the legal wrongfulness of her actions at the time period surrounding the offences and that she understood the nature and quality of her acts at that time.

36 Dr Nielssen and Professor Greenberg are essentially in agreement that the accused has available to her the defence of mental illness in that the accused had a defect of reason arising from a disease of the mind such that she did not know that what she was doing was morally, as opposed to legally, wrong. There is no expert evidence to the contrary. It is, however, a matter for me to determine.

37 There are some matters which initially I thought to be troublesome. The clothing that the accused wore at the time she killed Mr and Mrs Keyte would undoubtedly have become heavily blood stained. Her shoes were recovered but she obviously took some steps to hide or get rid of the clothing. One might think that a person who had the mental capacity to hide evidence that would link the person to the crime was not completely out of touch with reality. However, having heard the oral evidence of Professor Greenberg and Dr Nielssen this morning I am prepared to accept that this is an indication that the accused appreciated that what she did was legally wrong, but does not deny the probability that she did not have an appreciation of the moral wrongfulness of what she did. The other matter that caused me some concern was that the accused had given conflicting accounts of her alcohol and drug consumption but my concern has been allayed by the explanation I mentioned earlier.

38 Malingering by a person accused of a serious crime who seeks to raise a defence based upon mental incapacity is always something that must be considered. In this case I take into account that the diagnoses and opinions expressed by the two psychiatrists are not solely based upon what they were told by the accused. There was the prior diagnosis and the involuntary admission to the Chisholm Ross Centre almost two years before. There is the paranoid and delusional behaviour exhibited by the accused and reported by many of the witnesses. Professor Greenberg was provided with the accused's journals and diaries in which she recorded delusional and paranoid thoughts. There is also the fact that the there is no rational explanation for the offences such as robbery or revenge. For these reasons I do not think this is a case in which the accused is feigning symptoms of a mental illness in order to avoid criminal responsibility. Professor Greenberg and Dr Nielssen are both extremely well qualified and experienced experts in the field of forensic psychiatry and neither detected any element of malingering.

39 The consequences of finding in the accused's favour on the defence of mental illness is that I would return a verdict of not guilty on the grounds of mental illness. One possible consequence of that is that she could be discharged, either conditionally or unconditionally, into the community. Mr Haesler SC on behalf of the accused has conceded that this would not be appropriate. What will happen is that she will be detained in custody until she is released by due process of law. In other words she would remain in custody and be held as a forensic patient and come under the supervision of the Mental Health Review Tribunal. In coming to my decision as to the appropriate verdict I have taken into account the composition and functions of that Tribunal and the fact that the accused will not be released until it is satisfied that the safety of the accused or any member of the public will not be seriously endangered by her release. Her case will be reviewed by the Tribunal as soon as practicable and, if further detained, her case will be further reviewed at six monthly intervals. If at some stage she is released, it may be on conditions and if any of those conditions are breached, or her mental condition deteriorates to a point where she may be a serious danger to others, the Tribunal may order that she be apprehended and further detained.

40 My conclusions are: I am satisfied beyond reasonable doubt that the acts of the accused caused the death of Mr Kenneth Keyte and Mrs Margaret Keyte at Batehaven on or about 9 August 2009. I am satisfied on the balance of probabilities that at the time of those acts she was labouring under such a defect of reason from a disease of the mind as not to know that what she did was wrong.

41 My verdict on each count is: Not guilty on the grounds of mental illness.

42 Orders: In relation to both counts 1 and 2 on the indictment: 1 I order that Tracey Lee Pratt be detained at the Silverwater Women's Correctional Centre or at such other place as may be determined from time to time by the Mental Health Review Tribunal. 2 I direct that the Registrar notify the Minister of Health of this order. 3 I direct that the Registrar notify the Mental Health Review Tribunal of this order and provide to the Tribunal the following documentation: (a) a copy of these reasons for verdict and orders, (b) a transcript of this trial, and (c) a copy of each of the documents listed under the heading "Psychiatric Material" in the schedule of documents tendered by the Crown, being Exhibit A.

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