Citation: R v Kerollos [2021] NSWSC 259
Court: Supreme Court of New South Wales
Date: 25 March 2021
Judge: Hidden AJ
Background
The accused stood trial for the murder of his wife, whom he fatally stabbed multiple times in the neck and upper chest outside Prince of Wales Hospital at Randwick on the evening of 18 May 2019. The couple, originally from Egypt and adherents of the Coptic Christian faith, had been married for 24 years and had three adult sons. The act of killing was not in dispute.
In the two years preceding the killing, the accused developed increasingly entrenched delusional beliefs that his wife was unfaithful and, eventually, that she was engaged in promiscuity and producing adult films for payment. These beliefs had no foundation in fact. Over the same period, the accused monitored his wife's phone, installed a GPS tracker in her car, made covert audio recordings of her conversations, and presented those recordings to family members and clergy, despite the recordings being indecipherable to all who heard them.
In the period leading up to the killing, family, clergy, and two general practitioners had each raised concerns about the accused's deteriorating mental health. His wife sent a text message on the very day of her death describing his condition as worsening and stating that he needed medical attention.
Legal Issues
- Whether the defence of mental illness under section 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) was established on the evidence.
- Whether, at the time of the killing, the accused was suffering from a mental illness that deprived him of the capacity to know that what he was doing was wrong.
Decision
Hidden AJ sat without a jury. The sole issue at trial was the defence of mental illness, with both the accused's counsel and the Crown prosecutor accepting that the defence had been made out. The court received reports and oral evidence from two forensic psychiatrists, whose evidence the judge described as compelling.
The psychiatrists each diagnosed the accused with a serious mental illness. One expert found that the accused was experiencing a severe psychotic episode, characterised by command auditory hallucinations and delusional beliefs about his wife's infidelity, at the time of the killing. That expert concluded that his mental state prevented him from knowing that his actions were wrong. The second psychiatrist reached substantially the same conclusion, finding that the accused was overwhelmed by psychosis, including delusions and hallucinations, as well as a mood disturbance and alcohol intoxication, all of which together prevented him from reasoning with any degree of calmness about the moral or legal quality of his actions.
Hidden AJ was satisfied the defence had been established. The psychiatric evidence was consistent with the observations of family members, clergy, and police about the accused's deteriorating mental state in the period leading up to and on the night of the killing. The court expressly noted that this was not a case of ordinary controlling or jealous violence; it was, rather, a killing plainly produced by mental illness meeting the legal requirements of the defence.
The judge recorded that a not guilty verdict by reason of mental illness does not result in the accused's release. The accused would remain detained, subject to the Mental Health (Forensic Provisions) Act, under the supervision of the Mental Health Review Tribunal, with the possibility of leave or release only if the Tribunal were satisfied that doing so would not pose a serious danger to the public or to the accused himself.
Orders Made
- The accused is to be detained at a correctional centre, or such other place as may from time to time be directed by the Mental Health Review Tribunal, until released by due process of law.
Key Takeaways
- The Supreme Court returned a verdict of not guilty by reason of mental illness where two forensic psychiatrists each gave compelling and consistent evidence that the accused, at the time of the killing, was suffering from a severe psychotic episode that deprived him of the capacity to know his actions were wrong.
- A verdict of not guilty by reason of mental illness does not result in immediate release; under the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused is detained and subject to ongoing supervision and treatment by the Mental Health Review Tribunal.
- Delusional beliefs that were entirely without factual foundation, combined with auditory hallucinations, mood disturbance, and alcohol intoxication, were collectively sufficient to satisfy the legal elements of the mental illness defence in these circumstances.
- The court distinguished this case from instances of controlling or jealous domestic violence, finding instead that the killing was the product of a recognised and serious mental illness.
- Consistent lay observations of deteriorating mental health by family members, clergy, and general practitioners in the period preceding the offence supported and corroborated the expert psychiatric evidence.
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 38(1)
Cases
- Hawkins v The Queen (1994) 179 CLR 500
- R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
- R v M'Naghten (1843) 8 ER 718
- The King v Porter (1936) 55 CLR 182