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Supreme Court 18 December 2019

R v Kirkman

[2019] NSWSC 1826

Homicide
CRIMINAL LAW TRIAL BY JUDGE ALONE MURDER

Citation: R v Kirkman [2019] NSWSC 1826
Court: Supreme Court of New South Wales
Date: 18 December 2019
Judge: Button J

Background

In the early hours of 4 October 2018, the accused broke into a Wollongong home and fatally stabbed a young mother while her five-month-old son was present. The attack was not random: the accused had harboured a longstanding, intensely delusional belief that the deceased was a person of extreme evil, including a belief that she bore responsibility for the September 11, 2001 terrorist attacks. By the time of the killing, he was also acting under auditory hallucinations commanding him to kill her.

The accused had a prolonged history of mental illness, likely exacerbated by years of drug abuse, including LSD and crystal methamphetamine. As at October 2018, he was living in isolation, without medical support and not taking any anti-psychotic medication.

The trial proceeded before a judge alone. The accused pleaded not guilty, with the sole basis for acquittal being the special verdict of not guilty by reason of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW). Both the prosecution and defence forensic psychiatrists agreed that the defence was available.

  • Whether the special defence of not guilty by reason of mental illness was established under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • Whether the accused, at the time of the killing, was suffering from a mental illness that deprived him of the capacity to know that what he was doing was wrong, applying the M'Naghten test as adopted in Australian law

Decision

Button J accepted that the accused's actions were voluntary in the legal sense: they were willed and deliberate. He was also aware that he was taking a human life and that the criminal justice system would respond to his conduct. Those findings, however, did not preclude the mental illness defence.

The critical question was whether the accused appreciated that what he was doing was morally wrong. Button J found that, far from recognising the wrongfulness of his conduct, the accused genuinely believed he was doing something righteous. His delusional belief system, consistent with schizophrenia or schizoaffective disorder, had convinced him that killing the deceased was morally justified, even demanded.

Both forensic psychiatrists, one retained by each party, gave reports unanimously supporting the conclusion that the defence of mental illness was available. Button J accepted that evidence. The accused was found not guilty by reason of mental illness.

The Court ordered detention at a place to be determined by the Mental Health Review Tribunal. Button J noted that under s 43(a) of the Act, the Tribunal cannot release the accused into the community unless satisfied he will not seriously endanger any person, including himself. The judgment closed with Button J extending condolences to the deceased's family and acknowledging the profound impact of the killing on those who loved her.

Orders Made

  • The accused is to be detained at such place as may be determined from time to time by the Mental Health Review Tribunal.
  • The Registrar is to notify the Minister for Health, as soon as reasonably practicable, of the terms of the judgment and orders.
  • The Registrar is to notify the Mental Health Review Tribunal and Justice Health, as soon as reasonably practicable, of the terms of the judgment and orders, and provide each body with: a copy of the reasons for verdict and orders; a transcript of the proceedings; a copy of the exhibits tendered at trial; and a copy of the edited victim impact statements.

Key Takeaways

  • A verdict of not guilty by reason of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) is available even where the accused acted voluntarily and understood the legal consequences of the killing, provided the mental illness deprived the accused of the capacity to appreciate the moral wrongness of the conduct.
  • The Supreme Court confirmed that the M'Naghten test, as applied in Australian criminal law, focuses on whether the accused knew that the act was wrong, not merely whether the act was intentional or legally comprehensible to the accused.
  • Unanimous expert psychiatric evidence from both prosecution and defence psychiatrists, finding the mental illness defence available, was a significant feature of the proceedings and was accepted by the court.
  • Following a special verdict, the accused does not go free: detention follows, subject to the Mental Health Review Tribunal's ongoing supervision, and release into the community requires the Tribunal to be satisfied the accused poses no serious danger to others or to himself.
  • A trial by judge alone, ordered before proceedings commenced, permitted the court to proceed entirely on documentary evidence and agreed facts, with no witnesses called, while still maintaining procedural openness for interested parties.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39, 43
- Evidence Act 1995 (NSW), s 191

Cases
- M'Naghten's Case, Re (1843) 8 ER 718
- R v Porter (1933) 55 CLR 182
- Stapleton v R (1952) 86 CLR 358
- Ryan v R (1967) 121 CLR 205
- Hawkins v R (1994) 179 CLR 500
- R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
- Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210