Supreme Court New South Wales Medium Neutral Citation: R v Kerollos [2020] NSWSC 1758 Hearing dates: On the papers Decision date: 08 December 2020 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: The trial of R v Kerollos is to proceed by way of judge alone. Catchwords: CRIME – murder – application for trial by judge alone – issues of mental illness and substantial impairment – credibility a neutral issue – mitigating coronavirus delays significant factor in interests of justice – application granted Legislation Cited: COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW) Crimes Act 1900 (NSW), s 23A Criminal Procedure Act 1986 (NSW), ss 132, 365 Mental Health (Forensic Provisions) Act 1990 (NSW), s 38 Cases Cited: Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210 R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 R v Flame [2020] NSWSC 1013 R v Gokhan Eyuboglu [2019] NSWSC 181 R v Hadler [2018] NSWSC 1151 R v Jaghbir (No 2) [2020] NSWSC 955 R v M'Naghten (1843) 8 ER 718 R v Mackie (No 2) [2018] NSWSC 1654 R v McNeil (2015) 250 A Crim R 12; [2015] NSWSC 357 R v Porter (1933) 55 CLR 182 R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259 Sodeman v The Queen (1936) 55 CLR 192 Stapleton v The Queen (1952) 86 CLR 358 Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 Category: Principal judgment Parties: Mourad Kerollos (Applicant) Crown Representation: Counsel: Ms C Davenport SC (Applicant) Mr P Hogan (Crown) Solicitors: S.A.S Lawyers Solicitor for Public Prosecutions File Number(s): 2019/156203 Judgment 1. HIS HONOUR: Mourad Kerollos is charged with the murder of his wife Gihan Kerollos on the evening of 18 May 2019. He has pleaded not guilty. The next phase of the proceedings is to set a trial date. The availability of trial dates depends upon whether it will be by jury or judge-alone. The availability of courts is limited because of restrictions applying in consequence of the COVID-19 pandemic. 2. Mr Kerollos has applied to be tried by judge-alone. The Crown opposed the application. They have agreed that the dispute may be determined by me on the papers. They have provided the Crown Case Statement, reports of two forensic psychiatrists and written submissions. I am grateful for all of this to have occurred at relative short notice. Crown Case 1. The Crown Case Statement sets it out in more detail but the following will suffice to describe the case upon which the prosecution is based. 2. There is no dispute that the accused killed the deceased on the night of 18 May 2019. 3. The marriage of the accused and deceased had become strained in the period leading up to that event. He had an affair, which was discovered. They were living in separate bedrooms. He then became apparently obsessed with the idea that the deceased was involved in multiple extra-marital relationships. 4. The accused told others about recordings he had of the deceased that he claimed proved her involvement with other men. The others, including his sons, listened to the recordings but they were muffled and indistinct. They appeared to accept that it was the deceased's voice but no-one thought they provided any confirmation of the accused's claims. 5. According to Phillip Kerollos, one of the three sons to the marriage, a general practitioner had told the accused he was suffering from schizophrenia/bipolar but the accused did not believe it. He stopped going to this doctor because he did not like to hear about his deteriorating mental health. A psychologist, Dr Onsy Mattar, reported that the accused had complained of being unhappy in his marriage and of suffering from mood swings, poor sleep, hallucinations and hearing voices in his head. (The relevance of matters such as these is that they are indications of questions being raised about the accused's mental health prior to him being charged with the murder of his wife.) 6. A fortnight prior to 18 May 2019, the arguments between the couple intensified. A week later, Ms Kerollos went to visit her cousin in Newcastle. Mr Kerollos travelled to Newcastle and brought her home, accusing her of having an affair. 7. Ms Kerollos worked as an administrator at the Prince of Wales Hospital. The accused worked as a security officer at Auburn Hospital. 8. Ms Kerollos went to work on the afternoon of 18 May 2019. Her shift was due to end at 8.00pm. Usually, Mr Kerollos would pick her up afterwards. 9. Meanwhile, Mr Kerollos went to Auburn Hospital despite not being rostered to work that day. He entered the security office and left carrying a Coles plastic bag. 10. At around 8.21pm, Mr Kerollos was seen on CCTV outside an entrance to the Prince of Wales Hospital holding the Coles plastic bag. Ms Kerollos exited the building at 8.30pm and Mr Kerollos followed her. 11. Seven minutes later, Mr Kerollos was seen driving haphazardly out of a car park. At 8.39pm, he called triple-zero and told the operator that he had killed his wife with a knife. Police attended and he was arrested. A bloody knife was found on the passenger seat along with half a bottle of whiskey. 12. At about 8.50pm, a passer-by located Ms Kerollos' body in a pool of blood. There was a Coles plastic bag over her head. The passer-by called triple-zero. Police and paramedics attended and found a deep cut in Ms Kerollos' neck. Sadly, she could not be revived. The autopsy confirmed that the cause of death was a stab wound to the neck. Defence case 1. The defence contend that the only issue in this case is whether Mr Kerollos is not guilty by reason of mental illness or, pursuant to s 23A of the Crimes Act 1900 (NSW), guilty of manslaughter because of substantial impairment by an abnormality of mind. The mental illness defence 1. Section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) recognises the longstanding availability of the defence of mental illness: 38 Special verdict (1) 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. (2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person. 1. The defence is not there defined. It derives from R v M'Naghten (1843) 8 ER 718 and applies if an accused person was suffering from a defect of reason from a disease of the mind such that the accused did not appreciate the nature and quality of the physical act, or that it was wrong. 2. A "defect of reason" is an inability to think rationally: R v Porter (1933) 55 CLR 182 at 189. A disease of the mind must be "an underlying pathological infirmity of the mind": Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210 at [89]. The defence is not available where the accused's condition is the product of self-induced intoxication by alcohol or drugs: ample authority for this proposition is collected and discussed in Fang v R. 3. A person does not appreciate the nature and quality of their act if they do not know the physical nature of what they are doing, or the implications of it: R v Porter at 188. A person does not know that what is being done is wrong if they do not know it is wrong according to ordinary standards of right and wrong adopted by reasonable persons, or where the person cannot reason with some moderate degree of calmness in relation to the moral quality of what they are doing: Stapleton v The Queen (1952) 86 CLR 358 at 367; Sodeman v The Queen (1936) 55 CLR 192 at 202 (Latham CJ), 215 (Dixon J). Partial defence of substantial impairment 1. Section 23A of the Crimes Act provides: 23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if— (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (7) If, on the trial of a person for murder, the person contends— (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section— underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind. 1. The expert evidence available in this case which is reviewed below is confined to the first limb of the partial defence, the matter in s 23A(1)(a), given the prohibition in sub-s (2). Report of Dr Allnutt 21 February 2020 1. Dr Stephen Allnutt prepared a report for the defence dated 21 February 2020. Mr Kerollos told Dr Allnutt that he had chosen his wife to marry because she looked like his mother (who had died in 1994). He was very saddened by the death of his mother. He had visions of her and she continued to speak to him. 2. Mr Kerollos told Dr Allnutt that his relationship with his wife was "routine" until 2015. She began to make derogatory comments about him and withdrew sexual intimacy. He claimed to have discovered in early 2019 that she was working in the sex trade. He recorded her making phone calls that he said confirmed this. By 18 May 2019, he believed that his wife was having affairs with people including priests and others in the church. She was also prostituting herself, making pornography and hiding the money. 3. Mr Kerollos told Dr Allnutt that he went to show his wife some bills and they argued. He put his hand into the bag to get the bills but instead picked up the knife, which he had accidentally brought. He did not recall what happened thereafter. 4. Dr Allnutt's "impression" was that Mr Kerollos developed unresolved symptoms of grief following his mother's death and had probably suffered from fluctuating symptoms of depression and anxiety since then. When his wife rejected him and their relationship broke down around 2015, there was a further deterioration in his mental state with the emergence of more significant depressive symptoms which were active at the material time of the alleged offending. 5. Dr Allnutt considered that by January 2019, Mr Kerollos had developed the delusional belief that his wife was having affairs and making pornographic videos consistent with a delusion of infidelity. He said, "Both his depressive symptoms and delusional beliefs were present at the material time of the alleged offending". 6. In terms of the availability of the mental illness defence, Dr Allnutt is of the opinion that Mr Kerollos suffered from a "disease of the mind" (major depressive disorder with an associated delusion) causing a "defect of reason" at the time of the offence. He could probably appreciate the nature and quality of his actions but there is doubt as to whether he could "reason about his behaviour with a moderate degree of sense and composure". Dr Allnutt was conscious of the dearth of evidence as to what actually occurred when Mr Kerollos stabbed Ms Kerollos. Nevertheless, his delusions and irrational belief system would have undermined his capacity for moral judgment. 7. As to the availability of the partial defence in s 23A of the Crimes Act, Dr Allnutt said: Mr Kerollos had "an 'underlying condition' (major depressive disorder with delusional disorder) causing an 'abnormality of mind' (a delusional belief that his wife was being unfaithful to him), which would have impacted on his capacity to 'understand events' (that she had conspired with another man to harm him, was unfaithful with a broad range of men, making pornographic movies and stealing money from him); which affected his capacity to 'judge right from wrong' (he would have felt justified in acting in the manner he did, given his perception of her behaviour and fuelled by her denial), and he would have been compromised in his 'capacity to control actions' (depression and delusion increased his tendency to impulsive aggression driven by feeling of resentment, hurt and betrayal)." Report of Dr Kerri Eagle, 5 June 2020 1. Dr Kerri Eagle examined Mr Kerollos at the behest of the Crown. Mr Kerollos gave a similar account to Dr Eagle as he did to Dr Allnutt. The Crown submitted: "there are some inconsistencies in the accused's account of his symptoms given to the two psychiatrists". None were identified and nor is anything of significance apparent. 2. Dr Eagle diagnosed Mr Kerollos as having a psychotic disorder. It may be a major depressive disorder with psychotic features or a chronic psychotic disorder such as schizophrenia or schizoaffective disorder. After discussing the features tending to one or the other, she expressed a preference for the probability that it is the latter. She also diagnosed Mr Kerollos as likely having an alcohol use disorder, in remission in a controlled environment. She noted that the offending is alleged to have occurred in the context of alcohol intoxication that has impaired his judgment. 3. Dr Eagle concluded in relation to the availability of a mental illness defence: "If Mr Kerollos' version of events is accepted, it would appear probable that at the time of the Index Offence, he was overwhelmed by symptoms of psychosis (including delusions and hallucinations) and a mood disturbance which prevented him from being able to reason with any degree of the calmness as to the moral or legal quality of his actions." (Emphasis added) 1. As to the availability of the partial defence in s 23A, Dr Eagle considered that Mr Kerollos was experiencing an abnormality of mind as a result of his underlying condition arising from symptoms of psychosis, such as delusions and auditory hallucinations and depressive symptoms. She said that "subject to the findings of fact by the Court", Mr Kerollos' thought processes appeared significantly impaired by his symptoms of psychosis, particularly his delusion of infidelity. His capacity to reason may have been further impaired by his reported experience of hearing auditory hallucinations, potentially increasing his confusion and heightened emotional response. Additionally, however, his judgment and emotional response would likely have been further impaired by alcohol intoxication. 2. Dr Eagle was of the view that Mr Kerollos was significantly impaired in his capacity to judge whether his actions were right or wrong. Also, his capacity to understand events due to a delusion and his capacity to control himself due to a heightened emotional response and in the context of distressing auditory hallucinations were also likely significantly impaired at the relevant time. Section 132 of the Criminal Procedure Act 1. Section 132 of the Criminal Procedure Act 1986 (NSW) provides: 132 Orders for trial by Judge alone (1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order). (2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone. (3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order. (4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so. (5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness. (6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. (7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that— (a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and (b) the risk of those acts occurring may not reasonably be mitigated by other means. 1. The necessary prerequisites for the making of an order have been satisfied: there has been an application made by the accused and he has sought and received advice from a lawyer: sub-ss (1) and (6). The matter raised by sub-s (7) does not arise in this case. 2. It will be seen in the discussion of the submissions below that the key issues are whether "it is in the interests of justice" to make a trial by judge order and that the court may refuse to make an order if it is considered that the trial will involve a factual issue that "requires the application of objective community standards". The application 1. Senior counsel for Mr Kerollos submitted that given the experts agree on the availability of the defence of mental illness, there is no issue requiring the application of community standards and therefore it is in the interests of justice to proceed by way of judge-alone. 2. The Crown opposes the application on the basis that there are significant issues of credit that are better left to a jury. The Crown suggests that Mr Kerollos lied to the psychiatrists about his symptoms and that in fact the killing was the horrific culmination of a jealous, angry and controlling relationship. 3. The Crown also submitted that the defence of substantial impairment is best left to a jury because it requires a value judgment involving consideration of objective community standards. The Crown cited decisions of Button J in support: R v Gokhan Eyuboglu [2019] NSWSC 181 and R v Flame [2020] NSWSC 1013. 4. Senior counsel for Mr Kerollos noted in reply that no issue of his credibility will arise because she does not intend to call him at trial. To the extent that there is any question of credit, it is neutral. In addition, reference was made to evidence that Mr Kerollos complained of symptoms prior to the offending and he had resisted any diagnosis, instead insisting he was sane. Determination 1. At the outset it is appropriate to refer to what have been described as "collateral advantages of trial by jury". McClellan CJ at CL drew upon the judgment of Gleeson CJ in Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [7] in saying in R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 at [97]: "In Swain, as I have previously identified, Gleeson CJ identified what he referred to as the collateral advantages of trial by jury. Two interests are commonly identified. First, the community has an interest in ensuring that, where relevant to the issues to be tried, serious criminal matters are determined in accordance with current community standards. Subsection (5) expressly acknowledges this matter. Second, the community has an interest in ensuring that there is public confidence in the criminal justice system. The jury, as a means by which the public may participate in the processes of criminal justice, has been accepted as having a role to play in legitimating the operation of the criminal law, thereby enhancing public confidence in the administration of justice. However, it must also be remembered that less than 3 percent of the criminal trials in this State now take place with a jury: (McClellan CJ at CL, "The future role of the judge - umpire, manager, mediator or service provider" p 2, 1 December 2011)." 1. Hidden J in the same case noted that "an accused cannot have a trial by judge alone for the asking": R v Belghar at [118]. 2. In relation to the issue of the accused's credibility, the submissions for both parties included reference to the judgment of Hamill J in R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259, including at [81]-[82]: "[81] There may be cases where particular issues of credibility mean that the interests of justice favour a trial by jury. In R v Tasich [2012] NSWDC 96 Knox DCJ expressed the opinion that where there were attacks on the credibility of public officials and members of parliament 'it is an important matter for the administration of justice that the truth or otherwise of such purported attacks need to be determined in open court by the community as represented by the jury.' [82] I allow for the possibility that there are cases where such an approach may be correct. However, for the most part, the fact that a trial involves issues of credibility is a neutral matter when it comes to determining whether it is in the interests of justice to make an order for trial by judge alone. As was stressed in R v Belghar and Coates v Western Australia, each mode of trial has its advantages and disadvantages, strengths and weaknesses. While a jury has the advantage of being able to discuss the issues and the requirement for unanimity provides strength to its decision, a judge has the training and experience of making difficult decisions on question of credibility, putting aside matters of emotion, on an almost daily basis." 1. Whether it is in the interests of justice for credibility disputes to be determined by a jury is a matter to be assessed on a case by case basis. It is true that jury determination can be considered desirable. For example, that was the opinion expressed by Johnson J in R v McNeil (2015) 250 A Crim R 12; [2015] NSWSC 357 at [102] ("in my view this factor may operate in favour of a jury trial"). In R v Mackie (No 2) [2018] NSWSC 1654 at [25], Lonergan J expressed the view that "the general assessment of the credibility and reliability of the accused's representations to the undercover operative is more properly made using the collective wisdom of a jury of twelve, rather than a single judge". However, as Hamill J has noted, judges are perfectly capable of assessing credit when required, and do so on a daily basis. 2. The dispute as to the credibility of Mr Kerollos' accounts to the psychiatrists will entail the tribunal of fact assessing them on their own merit but also with comparison to the position before Mr Kerollos was charged with his wife's murder. It seems apparent from the document review helpfully included in the first report of Dr Allnutt that there is a reasonable amount of evidence from quite a number of witnesses that will bear upon the issue of Mr Kerollos' mental condition. Neither a jury nor judge is better qualified to determine this credibility issue. 3. The defence of mental illness will rise or fall on the question of whether the histories provided by Mr Kerollos to the experts are accepted as sufficiently credible. No issue of community standards arises. 4. The partial defence of substantial impairment raises an issue often thought of as giving rise to a consideration of community standards. In R v Flame [2020] NSWSC 1013, the experts disagreed on whether the accused's psychosis was a result of an underlying condition or of his drug usage. The accused contended that substantial impairment would not practically arise – either the jury would find that the psychosis was underlying and return a verdict of not guilty on the grounds of mental illness, or they would find it was external and therefore find that there was no abnormality of mind. They would never be required to consider the second limb of the partial defence. 5. Button J, noting that no one can definitively predict how a trial will run, held that since substantial impairment could not be ruled out the matter should go to a jury. [1] His Honour found that he, as a judge, would be poorly equipped to answer "the normative question" within substantial impairment because of his over-exposure to criminal law and the criminal justice system. He considered himself "anti-qualified"; his legal knowledge and practical experience in relation to the offence of homicide would be "a positive disadvantage". [2] 6. Judges do answer such questions when the need arises. In R v Hadler [2018] NSWSC 1151, Wilson J accepted that substantial impairment, "arguably", is best left to the collective wisdom of a jury. Nevertheless, her Honour granted a judge-alone application because of a risk the accused would become "floridly ill" and unfit to be tried during the trial, resulting in the discharge of the jury and consequential delay in the determination of the matter. [3] 7. Mr Kerollos differs from Mr Flame in that Dr Eagle and Dr Allnutt agree that both defences are available. The Crown suggests that he lied to the experts and was an abusive and jealous husband. If that was accepted, it is difficult to see how a finding of substantial impairment (which would be founded on the account Mr Kerollos gave to the psychiatrists) could then arise. 8. Ordinarily, the potential availability of a defence of substantial impairment might be persuasive in determining a contested application for a judge-alone trial. However, the coronavirus pandemic continues to disrupt and delay criminal jury trials by the need to wait for test results and by the reduced availability of suitable courts. The COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW) inserted s 365 into the Criminal Procedure Act, empowering the court to order judge alone trials on its own motion. It is notable that s 365 does not include any explicit reference to objective community standards as appears in s 132(5). Clearly, this was to enable more judge-alone trials to proceed until the pandemic is resolved. The present application, however, is for determination under s 132. 9. Davies J in R v Jaghbir (No 2) [2020] NSWSC 955 at [30]-[31] aligned himself with a prior judicial pronouncement that "the interests of justice also extend to the public interest in the due administration of justice". He considered in the context of the case before him that the interests of justice include that "criminal trials should proceed with the least chance of interruption and delay during the current crisis". Regrettably, restrictions imposed because of the COVID-19 pandemic continue to apply. Notwithstanding some recent relaxations to various aspects of social interaction, this Court continues to have a substantially decreased capacity to list criminal trials and will continue to do so for the foreseeable future. 10. It is not only the potentially available trial dates for the present matter that are affected by the decision as to whether it proceeds with a jury or by judge-alone. Every trial in this Court that proceeds with a jury has an impact upon the available time for future trials to be listed. The Court presently has pending trials with accused persons who have been in custody for four years or more. 11. I am satisfied that the interests of justice in the present case extend also to the interests of everyone involved in seeing it proceed as soon as possible. In this regard, I have in mind those who grieve the loss of Ms Kerollos, witnesses who will be pressed for their best memory of events that occurred more than 18 months ago, and the accused himself. As Wilson J found in R v Hadler at [74], "a speedier resolution to a criminal trial is always to be preferred where that is not inconsistent with a just outcome". 12. For these reasons I am satisfied that it is in the interests of justice that Mr Kerollos be tried by judge alone. Orders The trial of R v Kerollos is to proceed by way of judge alone. ********** Endnotes 1. Flame [69]-[74]. 2. Flame [73]. 3. Hadler [64],[73]-[76] 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: 08 December 2020