R .v. KERR [2002] NSWSC 309

New South Wales Supreme Court

CITATION : R .v. KERR [2002] NSWSC 309 FILE NUMBER(S) : SC 70003/02 HEARING DATE(S) : 12 April 2002 JUDGMENT DATE : 12 April 2002

PARTIES : Regina Nathan Anthony Dixon KERR JUDGMENT OF : Barr J at 1

COUNSEL : Mr P.S. Dare for the Crown Mr A.C. Haesler for the Accused SOLICITORS : S.E. O'Connor for the Crown Nikola Velcic & Associates for the Accused CATCHWORDS : Criminal Law - Accused found not guilty on the ground of mental illness LEGISLATION CITED : Mental Health Act 1990 DECISION : See Judgment at Paragraph 30

- 1 - IN THE SUPREME COURT REVISED OF NEW SOUTH WALES COMMON LAW DIVISION

Graham Barr J

12 April 2002

70003/02 Regina v Nathan Anthony Dixon KERR

JUDGMENT 1 HIS HONOUR: Nathan Anthony Dixon Kerr has pleaded not guilty to the charge that on 5 February 2001 at Kogarah he murdered Michelle Miller. He has elected for trial by judge alone and the Crown has consented to that form of trial. I shall explain when I review the psychiatric evidence why I think it appropriate that the accused be tried without a jury.

2 The Crown must prove beyond reasonable doubt that the accused did the acts which constitute the offence but he admits all the facts relied on, so there is no doubt about those matters. The accused contends that he is not guilty of the offence because at the time of the events giving rise to the charge he was mentally ill and therefore not legally responsible for his actions. He must prove that it is more likely than not that that was so.

3 The statement of the test for a defence of mental illness was propounded as long ago as 1843 in R v McNaghten. The question to be answered was whether the accused at the time the offence was committed was suffering from a defect of reason, from a disease of the mind, so 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 that what he was doing was wrong. The law has been amplified in Australia in the present century and the test may be said to be whether the accused was able to appreciate the wrongness of the act that he was doing. If through disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. It may also be said that if a disease of the mind so governs the faculties that it is impossible to reason with some moderate degree of calmness about the moral quality of an act, the actor is prevented from knowing that what he does is wrong. 4 The accused was born on 23 February 1980. Although he was not formally adopted until he was fifteen years old, he lived with his adoptive parents on and off from birth until he was two and a half years old and permanently after that. His natural mother had a history of schizophrenia and both natural parents were apparently addicted to the use of illegal drugs. 5 At the age of fifteen or sixteen the accused returned to live for some months with his natural parents. At about sixteen or seventeen he began smoking cannabis and reported that it made him "paranoid" and feel "weird". He cut down his use of the drug. However, he used other illegal drugs. He experimented with LSD and for a period of three months at age seventeen used heroin. He has used it occasionally since then. During the years immediately before the events giving rise to the charge his main drug of abuse was amphetamine. He had binges of three to five days of continuous use with little sleep. He was already experiencing the hallucinations of voices speaking to him, and became aware that the drug was exacerbating them. The voices urged him to attempt suicide and he experienced what he described as " dark thoughts". 6 He had no friends at school and got on with only a few teachers. He left before the end of year eleven. His longest employment has been for eight months at McDonalds. His other jobs have been unskilled or semi-skilled. 7 The accused appears to have tried a number of times to come to grips with his drug problem. He told Dr. Nielssen, a forensic psychiatrist who has advised the prosecution in this matter, that he had attended several drug and alcohol rehabilitation centres, including eighteen months at the William Booth Institute, a program conducted by the Salvation Army. 8 During 2000 he was at Foster House, a refuge conducted by the Salvation Army, and saw Dr. Babidge at the psychiatric clinic there. Dr. Babidge told him that he was mentally ill and recommended that he take anti-psychotic drugs. The accused declined to be treated. 9 In 2000 he participated in a youth development program at an institution called Triple Care Farm. During the period of his participation, between October and December 2000 he was seen by Dr. Collingridge. She observed that he had periods of erratic thought processes and that he could become agitated and verbally aggressive. She thought he exhibited obvious thought disorder and delusions of control. He was discharged from the program on 13 December 2000, still exhibiting thought disorder and intrusive behaviour. However, he told Dr. Collingridge that he accepted her advice and agreed to take an anti-psychotic drug, Risperidone. 10 Those conducting the program helped the accused to find a flat to occupy at Kogarah. He moved into the flat in December 2000. Another participant in the program, a young woman who was also suffering from a psychiatric illness, moved into the flat with him. 11 On 29 January 2001 the accused got in touch with the Mental Health Service at St. George hospital, Kogarah. He said that he had been diagnosed as suffering from schizophrenia and would like a further assessment. He reported problems with clarity of thinking, problems in interpersonal relationships and social contacts and long-standing feelings of depression. He described long-standing thoughts of suicide but denied any contemporary intention of committing suicide. He also described homicidal thoughts though he denied that he had any particular intention to kill anyone. It was apparent that he had not been taking the Risperidone that had been prescribed for him. He made an appointment to attend for an assessment on 2 February 2001. 12 Sadly, he did not keep the appointment. 13 At about 3:00am on Monday 5 February 2001 the accused engaged the services of the deceased, Ms Michelle Miller, a sex worker in Kings Cross. They took a taxi to the accused's flat. According to what the accused told Dr. Nielssen the accused had inhaled amphetamine during the evening before these events. He and Ms Miller entered the flat and both inhaled amphetamine. There is no suggestion that the accused had previously met Ms Miller or that he had any reason to do her harm. 14 He felt, according to what he told Dr. Nielssen, "really paranoid". He thought that Ms Miller was sent by Satan to get him killed. That, apparently, was a special message from God. He took a heavy torch and hit Ms Miller repeatedly about the head. The attack resulted in numerous lacerations to the scalp and accompanying comminuted skull fractures. There was a depressed fracture in the left temporal region. Subarachnoid and subdural haemorrhages resulted and they were the principal injuries which caused Ms Miller's death. The accused also took a large carving knife and stabbed Ms Miller twice. The first wound was in the central abdomen and was at least 160 millimetres deep. The second wound was to the left back and was about 60 millimetres long. It penetrated the ribs and entered the lower part of the left lung. The stab wounds, however, were probably inflicted as Ms Miller was dying or after she was dead. 15 The accused ran away and stayed away from the flat because he found it "too scary" to return. He thought that there were ghosts there. 16 The accused was arrested on 15 February 2001 and kept in custody. He was referred for admission to the psychiatric ward of the prison hospital and assessed there. He was administered the drugs he had been in need of. For a year now he has been the subject of a supervised, controlled regime of treatment. 17 For the purposes of the trial the accused was interviewed by Dr. Nielssen and by a psychiatrist qualified on behalf of the defence, Dr. Westmore. Both agree that although the accused was severely mentally ill when he killed Ms Miller and at the time of his arrest, he has benefited from the treatment administered to him so that he now understands the nature of the trial process and has the capacity to make important decisions about the conduct of his trial. I am accordingly satisfied that when the accused elected for trial by judge alone he had the mental capacity to do so. 18 The accused gave Dr. Westmore an account of the killing in much the same terms as those I have used in this judgment. He said that he believed at the time that Ms Miller intended to kill him because he had something special to offer the world. Dr. Westmore noted the history of drug use and that from his teenage years the accused had been receiving messages from the television and the radio. He noted the schizophrenia of the accused's natural mother. He noted the accused's difficult school and work history. He is of the view that the accused was probably suffering from acute schizophrenia when he killed Ms Miller. He thinks that the accused developed delusional beliefs towards her and acted aggressively towards her as a result of those delusional beliefs. 19 Dr Westmore is of the opinion that the most likely diagnosis is one of primary process schizophrenic illness aggravated by illicit drug use. The accused was suffering from that disease of the mind when he killed Ms Miller. It totally deprived him of the capacity to know that he ought not to do the act and that the act was wrong. His illness resulted in defective reasoning. 20 Dr. Nielssen noted the teenage history of school and work difficulties and developing symptoms as well as of drug abuse. He noted the very high dose of an atypical anti-psychotic drug which had been administered to the accused upon his reception into the psychiatric ward of the prison hospital. He concluded that when he killed the deceased the accused was acutely mentally ill, having developed an underlying schizophrenic illness characterised by abnormal moods, disorganised thinking, thought interference, hallucinations and delusional beliefs. He observed that the accused had a predisposition to become mentally ill and that amphetamines are known to induce acute exacerbations of mental illness in people having such a predisposition. He thought that amphetamine intoxication was likely to have increased the accused's predisposition to act in an aggressive way. 21 However, Dr. Nielssen's opinion is that the main reason for the accused's abnormality of mind at the time of the offence was an acute exacerbation of schizophrenia. He thinks that the accused is likely to have experienced the abnormal arousal and disorganised thinking that are associated with acute episodes of mental illness, which affected his ability to reason with any composure or to realise at the time of the events that his behaviour was morally wrong. 22 In my opinion the accused has proved on this material that at the time of the events giving rise to the charge of murder he was mentally ill and has the defence of not guilty on the ground of mental illness available to him. He must therefore be found not guilty. 23 It is necessary to say a number of other things, however. The events giving rise to the charge have been distressing and perplexing for all those who have been touched by them, including the family of the accused himself. The sympathy of the Court goes out to all those so affected.