R v Kemball

[2020] NSWSC 1559

Supreme Court

New South Wales

Medium Neutral Citation:

R v Kemball [2020] NSWSC 1559

Hearing dates:

2 November 2020

Date of orders:

4 November 2020

Decision date:

04 November 2020

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

1 In accordance with s.38 Mental Health (Forensic Provisions) Act 1990, the Accused, Peter John Kemball, is found not guilty of the charge of murder on the grounds of mental illness.

2 In accordance with s.39(1) Mental Health (Forensic Provisions) Act 1990, an order is made that Peter John Kemball be detained in a correctional facility or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law.

3 In addition:

(a) the Registrar is to notify the Minister for Health, as soon as practicable, of the making of these orders;

(b) the Registrar is to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide to that Tribunal the following documentation:

(1)    a copy of these reasons for verdict and orders;

(2)   the transcript of the trial;

(3)   copies of exhibits from the trial including the reports of Professor Greenberg and Dr Nielssen;

(4)   copies of the victim impact statements of Adam Douglas and Sean Douglas.

(c) the Registrar is directed to notify Justice Health, as soon as practicable, of the verdict and orders in this matter and provide to Justice Health copies of the following documents:

(1)   a copy of these reasons for verdict and orders;

(2)   copies of the reports of Professor Greenberg and Dr Nielssen.

Catchwords:

CRIMINAL LAW - Judge-alone trial - murder - defence of mental illness - mental health professional killed in course of duty by mentally ill person being treated in the community - accused with long history of mental illness - schizophrenia or schizoaffective disorder - medical expert evidence unanimously indicates defence of mental illness available - delusions involving persons including deceased - verdict of not guilty by reason of mental illness - victim impact statements received under s.30L Crimes (Sentencing Procedure) Act 1999 - importance of victim impact statements - order that accused be detained under s.39(1) Mental Health (Forensic Provisions) Act 1990

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Mental Health Act 2007

Mental Health (Forensic Provisions) Act 1990

Cases Cited:

Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210

Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28

Lucas v The Queen (1970) 120 CLR 171; [1970] HCA 14

Mizzi v The Queen (1960) 105 CLR 659; [1960] HCA 77

R v Hall (1988) 36 A Crim R 368

R v Jenkins (1963) 64 SR (NSW) 20

R v Klamo (2008) 18 VR 644; [2008] VSCA 75

R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226

R v M'Naghten (1843) 8 ER 718

R v Radford (1985) 42 SASR 266

R v Rodriguez [2010] NSWSC 198

The King v Porter (1933) 55 CLR 182; [1933] HCA 1

The Queen v Falconer (1990) 171 CLR 30; [1990] HCA 49

Tumanako v R (1992) 64 A Crim R 149

Texts Cited:

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Category:

Principal judgment

Parties:

Peter John Kemball (Accused)
Regina (Crown)

Representation:

Counsel:
Mr PE Barrett (Crown)
Ms H Shaw, solicitor (Accused)

Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2019/00377229

Publication restriction:

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Judgment

1. JOHNSON J: On 2 November 2020, the Accused, Peter John Kemball, was arraigned on an indictment which charged that, on 28 November 2019, at Balmain East in the State of New South Wales, he did murder Stephen James Douglas. The Accused pleaded not guilty on the grounds of mental illness.

2. Prior to 2 November 2020, the Accused signed a written election to be tried by Judge alone having received advice in relation to the election from his legal representatives. The Crown consented to a Judge-alone trial so that the Court was required to proceed by way of Judge-alone trial for the purpose of s.132(2) Criminal Procedure Act 1986.

3. Section 133 Criminal Procedure Act 1986 provides that a Judge trying a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt. A judgment by a Judge in such a case must include the principles of law applied by the Judge and the findings of fact on which the Judge relies.

The Trial of the Accused

4. Before the commencement of the trial, Ms Shaw, for the Accused, informed the Court that the sole issue in the trial concerned the defence of mental illness.

5. Psychiatric evidence placed before the Court confirmed that the Accused was fit to be tried.

6. The Crown tendered in evidence a Statement of Agreed Facts signed by the Accused and on behalf of the Crown (Exhibit A) together with a report of Professor David Greenberg, forensic psychiatrist, dated 9 August 2020 (Exhibit B).

7. Tendered in the Accused’s case was a report of Dr Olav Nielssen, forensic psychiatrist, dated 20 May 2020 (Exhibit 1).

8. Neither the Crown nor Ms Shaw sought to cross-examine Professor Greenberg or Dr Nielssen on their reports. As will be seen, there is no real controversy concerning the factual and psychiatric evidence in this case.

9. Ms Shaw furnished helpful written submissions for the purpose of the trial (MFI1). In his closing address, the Crown stated that there was no dispute or controversy with respect to the appropriate findings to be made and the verdict to be returned with the Crown agreeing with the submissions made on behalf of the Accused.

10. Ms Shaw made short additional submissions with respect to the issues in the trial.

11. At the conclusion of the trial, the Court adjourned until today (4 November 2020) to give reasons and return a verdict in the trial. The Crown requested that the Court adjourn from 2 November 2020 to assist the Crown to prepare victim impact statements to be relied upon, in the event that a verdict of not guilty by reason of mental illness was returned, for the purpose of s.30L Crimes (Sentencing Procedure) Act 1999.

Issues in the Trial

12. The burden of proof lies on the Crown to establish beyond reasonable doubt each element of the offence of murder. The elements which the Crown must prove in this case are that:

1. Stephen James Douglas, the deceased, died as a result of injuries;

2. the injuries were inflicted by the deliberate acts of the Accused; and

3. at the time of doing the acts, it was the intention of the Accused to kill or inflict grievous bodily harm to Mr Douglas.

13. It has been said that, when the defence of mental illness is raised, it is unnecessary to consider whether the Crown has proved the mental element of the offence unless the Court is not satisfied that the accused has established, on the balance of probabilities, the elements of the defence of mental illness: Hawkins v The Queen (1994) 179 CLR 500 at 517; [1994] HCA 28; R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [30]-[32].

14. It is conceded for the Accused that the Statement of Agreed Facts establishes beyond reasonable doubt that the Accused voluntarily and deliberately did the acts which caused the death of Mr Douglas, so that the Crown has proved to the criminal standard the physical elements of the charge of murder. In these circumstances, it was submitted for the Accused (and not disputed by the Crown) that the Court should turn to the issue whether the Accused, having raised the defence of mental illness, can establish on the balance of probabilities the elements of that defence: R v Minani at [32].

15. Once the Crown has established beyond reasonable doubt the elements of the crime of murder, the remaining issue is whether the Accused has available to him the defence of mental illness as to which he bears the onus of proof on the balance of probabilities: Mizzi v The Queen (1960) 105 CLR 659 at 664-665; [1960] HCA 77.

16. If it appears that the Accused was mentally ill at the time when he committed the relevant acts, the Court must return a special verdict that he is not guilty by reason of mental illness: s.38(1) Mental Health (Forensic Provisions) Act 1990. The defence of mental illness is to be determined in accordance with the M’Naghten rules laid down in R v M'Naghten (1843) 8 ER 718. Those rules provide that every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proven. To establish the defence of mental illness, it must be proved upon the balance of probabilities that, at the time of committing the act causing death, the accused was labouring under such a defect of reason from disease of the mind so as to not know the nature and quality of his act, or if he did know it, that he did not know that what he was doing was wrong. A person does not know what he was doing was wrong when he does not know that it is wrong according to the ordinary standards of right and wrong adopted by reasonable persons or when he cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing: The King v Porter (1933) 55 CLR 182 at 189-190; [1933] HCA 1.

17. A “disease of the mind” is any disease which is capable of affecting the mind and the term is synonymous with “mental illness”: R v Radford (1985) 42 SASR 266 at 274. However, it does not include the transitory effects of some application of an external factor such as violence or drugs or a psychological trauma to an otherwise healthy mind: The Queen v Falconer (1990) 171 CLR 30 at 53; [1990] HCA 49; Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210 at [66]ff.

Findings of Fact

18. The following findings are drawn from the Statement of Agreed Facts (Exhibit A). I note that limited parts of the narrative contained in that document were the subject of a non-publication order made by me at the trial pursuant to ss.7 and 8 Court Suppression and Non-publication Orders Act 2010. As stated when the non-publication order was made, identified parts of the factual narrative which involve a level of detail which will distress the relatives and friends of Mr Douglas are not to be published. It is not necessary for the Court to include those parts in this judgment.

Background of the Accused

19. The Accused was born in October 1979 and, at the time of the events on 28 November 2019, he was 40 years of age.

20. The Accused had been diagnosed with paranoid schizophrenia or schizoaffective disorder when he was about 20 years old. That diagnosis remains current to this day. The Accused was first hospitalised for this condition in about 2001 when he was about 22 years of age. Thereafter, he came under the care of the Camperdown Community Mental Health Team which operated from the Royal Prince Alfred Hospital.

21. The Accused regularly smoked cannabis.

22. In November 2019, the Accused was residing on his own at a unit in Nicholson Street, Balmain East. This residence was provided by NSW Housing.

23. For about two years leading up to November 2019, the Accused’s medication was injected by his general practitioner at a Rozelle Medical Centre rather than by the Camperdown Community Mental Health Team. The Accused had been subject to a community treatment order (“CTO”) under the care of the Camperdown Community Mental Health Team, but the CTO had lapsed some months prior to 28 November 2019.

Background of the Deceased

24. Stephen James Douglas was born in 1956 and was 62 years old at the time of his death. He was a registered nurse working as a mental health case worker with the title of Care Co-Ordinator.

25. Mr Douglas had been employed as a nurse for some 22 years. He had worked in mental health nursing for about 15 years. He had been employed in the Camperdown Community Mental Health Team for about two years and three months (as at November 2019) and had been the Accused’s case manager for about two years.

Various Observations of the Accused in 2019

26. From May 2019, the Accused’s father, Howard Kemball, noticed that the Accused expressed the belief from time to time that Howard Kemball was Malcolm Turnbull and that the Accused’s mother, Lena Kemball, was Julie Bishop.

27. In June or July 2019, one of the Accused’s neighbours thought the Accused was filming her through a gap in his living room curtains whilst she was walking the dog in the courtyard. Around that time when she said “Hello” to the Accused, he responded “I’m onto you”.

28. In October 2019, another of the Accused’s neighbours observed the Accused arranging for a locksmith to place new locks on the Accused’s rear door. The neighbour noticed that, whenever he (the neighbour) entered or left his apartment, the Accused would look out of his own door to check on him. In late November 2019, the neighbour noticed that the Accused was talking “gibberish”.

29. On a day in late October 2019 or early November 2019, the Accused’s father met him for lunch at a café in Darling Street, Balmain. When the food was served, the Accused looked at his father and then stood up and left without speaking.

Medication on 26 November 2019

30. On Tuesday, 26 November 2019, the Accused attended his general practitioner at Rozelle. During that appointment, he was given an injection of the antipsychotic medication “Abilify”. Only 1.3 ml or 1.4 ml of the usual 1.9 ml dose was given with some of the medication remaining in the vial when it was drawn into the syringe.

Other Events from 26-28 November 2019

31. From Tuesday, 26 November 2019 to Thursday, 28 November 2019, the Accused’s mother and father noticed that the Accused’s conduct was becoming more paranoid. The Accused called and messaged his mother and father frequently during those two days.

32. At about 5.33 am on Wednesday, 27 November 2019, the Accused had a phone conversation with his mother in which he said “So, Julie Bishop, why do you live in the Intercontinental Presidential Suite with Malcolm Turnbull pretending to be my parents, for real”. The Accused made this phone call using his Android phone on speaker and used his iPhone to record the phone call in a video recording. The Accused and his mother argued at length about whether the Accused would visit his general practitioner the following day at 2.00 pm. Later in the call, the Accused said “I know this isn’t mum”.

33. At about 5.43 am on 27 November 2019, immediately after the call with his mother, the Accused had a brief phone conversation with his father in which he called his father Malcolm Turnbull and they argued about whether the Accused would attend his appointment with the general practitioner the following day.

34. The Accused’s mother exchanged messages with Mr Douglas later on 27 November 2019 expressing her concern about the Accused’s state of mind.

Events on 28 November 2019

35. At about 7.30 am on Thursday, 28 November 2019, the Accused was observed in a supermarket near his residence. The Accused was pacing inside the shop and appeared agitated. He approached a woman in the shop and asked if she was a spy. She denied that she was a spy and the Accused then asked her if she could lift 100 kg.

36. Later on the morning of 28 November 2019, the Accused visited his parents’ residence. During this visit, he used a cushion to hit his mother three times on the head. He shook a neighbour who came to the door and yelled at a carpenter working across the road. Once again, the Accused told his mother that she was Julie Bishop.

37. The Accused had a regular appointment with his general practitioner booked for 1.00 pm on 28 November 2019. The Accused’s father agreed to meet with him at the appointment and the Accused left his parents’ house. The Accused’s father contacted Mr Douglas by text message to express his concern about the Accused’s conduct and to request that Mr Douglas make an appointment to see the Accused.

38. The Accused’s mother dropped the Accused’s father at the medical centre at Rozelle. The Accused attended late and told his father that he had just consumed two schooners of beer at the Balmain Bowling Club. The Accused’s father could smell alcohol on the Accused.

39. The Accused’s general practitioner spoke with the Accused in the absence of his father. The Accused’s father continued to exchange messages with Mr Douglas. The Accused then left the medical centre without his father.

40. The Accused’s general practitioner was concerned about the Accused and she phoned Mr Douglas some time before 2.00 pm. Mr Douglas determined to visit the Accused to perform an assessment.

41. At about 2.29 pm, the Accused had a telephone conversation with his father. The Accused said that Mr Douglas was going to visit him and that he told Mr Douglas that he should come on his own. The Accused said “This case manager Stevie Douglas who’s my hitman and I’m his job, right?”. The Accused also said “I’ll call you after I kill him”. According to the Statement of Agreed Facts, it did not appear that the Accused’s father understood what the Accused had said in this respect.

42. Mr Douglas had a colleague named Linda Muir who was 60 years old and had worked as a Care Co-ordinator in the Camperdown Community Mental Health Team for some six years. Ms Muir had already asked Mr Douglas whether he would attend a home visit with her at 3.00 pm that day as she wanted help with one of her clients.

43. Mr Douglas returned to his workplace at Camperdown. He and Ms Muir decided that they would travel together to see the Accused and Ms Muir’s client, but that Mr Douglas would visit the Accused on his own. Ms Muir had only met the Accused on two prior occasions.

44. Mr Douglas and Ms Muir left their office in a work vehicle at about 2.45 pm. Whilst they were driving, the Accused phoned Mr Douglas at about 2.48 pm. During this conversation, Mr Douglas confirmed with the Accused that he was on his way and that he was coming to the Accused’s residence on his own.

45. Mr Douglas was concerned that the Accused might require a hospital admission because of a relapse of his symptoms. Mr Douglas and Ms Muir discussed strategies for asking the Accused questions for the purpose of an assessment. Mr Douglas indicated that he did not feel unsafe with the Accused.

46. Mr Douglas and Ms Muir arrived at the Accused’s building at about 3.10 pm. Mr Douglas and Ms Muir agreed that, if Mr Douglas had not returned by 3.30 pm, Ms Muir would come up and knock on the Accused’s door. Mr Douglas inadvertently gave Ms Muir the wrong street address for the Accused.

Mr Douglas Enters the Accused’s Residence

47. At about 3.13 pm on 28 November 2019, Mr Douglas entered the Accused’s residence. Soon after, the Accused began to attack Mr Douglas using a kitchen knife to stab him repeatedly. Mr Douglas died as a result of multiple sharp force injuries.

48. After the attack upon Mr Douglas, the Accused placed a folding sofa couch on top of Mr Douglas’ body in his living room.

49. At about 3.30 pm, Ms Muir went to find the Accused’s residence. Because she had been given the wrong address, it took her longer to locate it.

50. At about 3.35 pm, the Accused phoned his father and said words to the effect “I just killed my case manager”. The Accused’s father said “That’s not funny. Don’t joke about this. Where is he?” and the Accused said “I put him on the bed. He’s sitting right next to me”. His father said “I don’t believe you. Send me a photo”.

51. At about 3.39 pm, the Accused sent his father a photograph of Mr Douglas. The Accused’s father immediately rang “000” and began driving to the Accused’s residence.

52. At about 3.43 pm, Ms Muir knocked on the Accused’s door.

53. At about 3.45 pm, at least six police officers responded to a radio broadcast as a result of the “000” call and proceeded to the Accused’s residence.

54. At about 3.47 pm, Ms Muir contacted the Accused by telephone. The Accused said words to the effect that Mr Douglas had died. The Accused then told Ms Muir that Mr Douglas had left. In response to further questions from Ms Muir, the Accused said, “He said I’m suicidal, that’s it, I’m coming over and then he died”. The Accused asked Ms Muir if she was a police officer. The Accused also said “He stabbed himself to death …”.

Police Arrive at the Accused’s Residence

55. At about 3.55 pm, police officers arrived at the Accused’s residence with a police officer banging on the door and yelling “It’s the police, open the door”. Police attempted to force open the door. At this time, the Accused was recording with his iPhone saying a variety of unintelligible things as police were attempting to gain entry. At this point, the Accused’s father arrived and asked the Accused to open the door.

56. The Accused opened the door and his clothing was covered in blood. Police officers entered the unit and the Accused moved suddenly trying to leave and was forced to the ground and handcuffed.

57. At this time, the body of Mr Douglas was discovered. A kitchen knife, which the Accused had used to stab Mr Douglas, was located in the kitchen sink.

58. During his interaction with police, the body-worn camera of a police officer recorded the Accused being arrested and cautioned. During the conversation, the Accused said “What are we still doing here? Are you just waiting for me to die?”. When the Accused was asked his name, he replied “Dr Peter John Kemball”. He told police that he had had some marijuana and two beers that day.

59. A police officer told the Accused to relax and the Accused replied “I’ll be dead by then”. The Accused also said “Can I wait outside? Can you just carry me or something? I’m not dangerous now. I can’t hurt a fucking fly”. A little later, the Accused said “I beat you to death with my bare hands today. I did” and “It’s self-defence. He was going to murder people. Can I go now?”.

60. Ambulance paramedics attended the Accused’s residence and advised police that the Accused should be taken to hospital for a leg injury.

61. At about 4.38 pm, the Accused was escorted by police and ambulance officers to the Royal Prince Alfred Hospital. Thereafter, the Accused underwent surgery for his leg injury. Later, the Accused was conveyed to Newtown Police Station where he was placed into custody.

62. The Accused has remained in custody since his arrest on 28 November 2019.

The Psychiatric Evidence

Professor Greenberg

63. Professor David Greenberg examined the Accused at the Metropolitan Remand and Reception Centre, Silverwater, on 23 July 2020 and via audio-visual link on 27 July 2020. The detailed report of Professor Greenberg contains the Accused’s account of the fatal incident on 28 November 2019 together with the Accused’s personal and medical history.

64. Professor Greenberg had access to records of the Accused’s psychiatric admissions and treatment since 2002 which he summarised in helpful detail. After a review of the evidence, medical records and his examination of the Accused, Professor Greenberg provided the following opinion with respect to the Accused (Exhibit B, pages 41-42):

“I am of the opinion that based on the provided documentation and my clinical assessment of the accused, Mr Kemball qualifies for the diagnosis of having a Schizoaffective Disorder.

Mr Kemball had initially been diagnosed as having a Schizophrenic Disorder. In order to diagnose Schizophrenia (DSM-V)

A] An individual must have 2 or more of the following criteria, each present for a significant portion of time during a one-month period and at least one of the first three criteria (i.e. an acute psychotic episode):

a) Hallucinations

b) Delusions

c) Disorganised speech

d) Grossly disorganised behaviour

e) Negative symptoms

B] For a significant portion of the time since the onset of the disturbance, level of functioning in one or more major areas, such as work, interpersonal relations, or self-care is markedly below the level achieved prior to the onset.

C] Continuous signs of disturbance persists for at least six months. During these prodromal or residual periods, the signs of the disturbance may be manifested by only negative symptoms or by two or more symptoms listed in criteria A present in an attenuated form.

E] The disturbance is not attributable to the physiological effects of a substance (such as cannabis or chronic alcoholism).

However, in my opinion and the opinion of all his admitting treating psychiatrists and community mental health treating teams, Mr Kemball is better diagnosed with a Schizoaffective Disorder which has elements of both schizophrenia and a mood disorder.

In order to diagnose a DSM V Schizoaffective Disorder, the individual needs to meet the following criteria:

A] An uninterrupted period of illness during which there is a major mood episode (Major Depressive or Manic) concurrent with Criterion A of Schizophrenia.

B] Delusions or hallucinations for 2 or more weeks in the absence of a major mood episode during the lifetime duration of the illness.

C] Symptoms that meet criteria for a major mood episode are present for the majority of the total duration of the active and residual portions of the illness.

D] The disturbance is not attributable to the effects of a substance or other medical condition.”

65. Professor Greenberg also considered it likely that the Accused qualified for a diagnosis of alcohol and cannabis use disorders (Exhibit B, pages 43-44). He expressed the opinion that the Accused was fit to plead and fit to stand trial (Exhibit B, pages 44-46).

66. Professor Greenberg provided a detailed assessment of the mental state of the Accused at the time of the alleged offence in the course of which he said (Exhibit B, page 46):

“I am of the opinion that Mr Kemball qualifies for a legal concept of ‘disease of the mind’. In my opinion, Mr Kemball had a relapse of his Schizoaffective Disorder which is a mental illness with positive psychotic symptoms such as delusions and thought disorder at the time of the alleged offence.”

67. In the course of a detailed examination of other aspects touching upon the Accused’s mental state on 28 November 2019, Professor Greenberg said (Exhibit B, page 47):

“I note on the 29 November 2019 at Royal Prince Alfred Hospital, Mr Kemball was assessed by a Justice Health psychiatrist, Dr Spencer who noted he reportedly was receiving his monthly intramuscular 400 mg Aripiprazole depot injection the last being on the 26 November 2019. However, it was documented the GP noted that 0.5 mls of a 2 ml vial was left in the vial (after his last injection), so she asked Mr Kemball to return to the surgery the day after for the balance of the medication but he did not attend. I note Dr Spencer records that he was receiving 50 mg Quetiapine (Seroquel) XR at night at that time.”

68. Professor Greenberg expressed the following additional conclusions with respect to the elements of the defence of mental illness in the case of the Accused (Exhibit B, pages 54-55):

“I’m of the opinion that at the time of the alleged offence, Mr Kemball was labouring under defect of reason caused by disease of the mind.

In my opinion, Mr Kemball was labouring under a defect of reason involving multiple delusional beliefs which are not clearly defined or systematised in his thinking processes because of his disorganised and disjointed psychotic thoughts (thought disorder). He believed he was a police officer and also stated he was a psychiatrist (delusional beliefs). He also believed there was an incident in his flat and that he successfully worked with others to contain the situation. There was expressed concern about someone selling things for two dollars in the area with the implication that this was untoward in some way and needed to be managed. He believed he was a police officer and there was an incident at his house a few days ago where he in conjunction with a group of other police officers ‘took out’ the victim.

It appears to have developed multiple ill-defined and un-systematised persecutory beliefs about his case coordinator, the deceased. He believed that Mr Stephen Douglas was raping people. He believed he was acting in self-defence and he was fighting Satan. He claimed had a fight with Lucifer and they fought over love and freedom. He also expressed ill-defined paranoid thoughts about those ‘higher up’, ‘the Hague’ and the ‘illuminati’.

He talks about an altercation with his case manager and this seems intertwined with his resentment and lack of insight into his psychiatric care [and] need for psychiatric medication. He was also resentful about his CTO. He had various persecutory delusions about his case manager hurting people and, in some way, the Balmain police knew about these activities. He alleged the case manager used to go to the Philippines and was the ‘cause of battle zones’. He claimed his case manager was a ‘beast’. When I asked him why he killed his case manager and he stated, ‘We argued about his holidays. In Asian countries. Previous colleagues asked me if I liked snuff (child pornography)’. He also claimed, ‘I thought he (the deceased) was guilty of crimes against humanity’.

He claimed he was unsure how he received wounds to his hands and legs and claimed he could not remember the details. He stated, ‘I just remember having a clamp on my leg, someone writing on my forehead, it was like Star Wars. I’m not sure what my situation was, I think it’s been taken care of’. ‘Carl, Stevie Douglas, he can go through people’s sleep and leave a two dollar coin. The way to avoid it was with piggy banks’. When asked why Carl would leave coins he replied, ‘I don’t know, aliens, men in black…Stevie Douglas was Lucifer’. ‘It was still going on, the constant harassment’. When he asked what the harassment was [he] stated, ‘It was blocking my development’. Mr Kemball alleged that he was being harassed ‘by Stevie Douglas and his crew’. ‘I think it was a job, part of being a law enforcer’. He also claimed he was on a mission but when questioned about the mission, he claimed he was worried about his father and keeping him safe.

When I asked him if he believed that Malcolm Turnbull was his father, he stated, ‘Yes. Julie Bishop and Malcolm Turnbull. Those two politicians have come into my life to ruin my life. Sounding like my parents. That’s the mental illness part’. He then ruminated about his CTO and psychiatric treatment, and was of the belief that his parents had in some way colluded with the mental health services in having him remain on a CTO and medication.

I am therefore of the opinion that Mr Kemball likely did know the nature and quality of his act at the time of the alleged offence.”

69. Professor Greenberg concluded his report with the following expression of opinion (Exhibit B, page 56):

“Based on my above paragraphs (pages 46-55) in this psychiatric report, I’m of the opinion that Mr Kemball likely did not fully know that the act was legally wrong and in addition, he did not know the act was morally wrong. In my opinion he did not know that the conduct was morally wrong because he could not reason with a moderate degree of sense and composure about whether his conduct, as seen by a reasonable person, was wrong.

On balance, I’m of the opinion that Mr Kemball likely has a defence of mental illness available to him and was likely suffering from a mental illness so as not to be responsible for his actions in accordance with the test set down in R v M’Naghten (1943) 8 ER 718.”

Dr Nielssen

70. Dr Olav Nielssen interviewed the Accused by audio-visual link on 15 January 2020 and on 19 May 2020. In addition, Dr Nielssen examined a wide range of documentation, including statements and medical and hospital records concerning the Accused, and spoke to the Accused’s parents.

71. After setting out the Accused’s history, including his psychiatric and personal history, Dr Nielssen summarised information obtained after a document review and his conversations with the parents of the Accused.

72. Dr Nielssen expressed the opinion that the appropriate diagnoses for the Accused were schizophrenia and substance use disorder, in remission.

73. Dr Nielssen explained why he formed this opinion (Exhibit 1, pages 8-9):

“The diagnosis of schizophrenia is made on the basis of the symptoms reported by Mr Kemball, the information provided by his parents about his psychiatric history and recent presentation, the diagnosis, treatment and other information in the various medical records, and Mr Kemball’s presentation during the two interviews.

Mr Kemball reported the onset of schizophrenia at the age of around twenty followed by an admission to Rozelle Psychiatric Hospital. He reported several subsequent admissions, and treatment with long acting injections as a condition of Community Treatment Orders. His parents reported the emergence of acute symptoms of schizophrenia in the months before the offence, with increasing suspicion and hostility, behaviour suggesting the emergence of auditory hallucinations, and misidentification delusions. At the time of the initial interview he had the abnormal emotional responses and disorganised speech in a pattern consistent with an acute exacerbation of schizophrenia despite continuous treatment with an antipsychotic medication given by long acting injection and the addition of another medication.

During the most recent interview he was assessed to have made a good initial response to treatment with a therapeutic dose of clozapine.

The further diagnosis of a substance use disorder is made on the basis of the history of regular use of cannabis, which is associated with an earlier onset and less favourable course of schizophrenia. Any use of cannabis in a person with an emerging or established psychotic illness would be considered harmful, and sufficient to meet the accepted criteria for the diagnosis of a substance use disorder. The condition was described as being in remission as a result of his detention in a largely drug free environment.”

74. Dr Nielssen addressed the defence of mental illness in the following way (Exhibit 1, page 9):

“I believe Mr Kemball has the defence of mental illness open to him for this offence. He has a disease of the mind in the form of a chronic schizophrenic illness, which in its typical form is a neurodegenerative disorder that during the acute phase produces a pattern of abnormality of mind manifesting in impaired emotional regulation, impaired capacity for logical thinking, perceptual disturbances, especially hallucinated voices, and delusional beliefs, usually arising from the content of hallucinated voices or related experiences, such as perceived communication via thoughts. Around the time of the offences Mr Kemball was affected by persecutory beliefs involving other people, including mis-identification delusions, which are comparatively rare, but are associated with lethal violence. He expressed the delusional belief that Mr Douglas was armed with a gun and that he was part of a conspiracy to force him to continue psychiatric treatment.

Mr Kemball was probably aware of the physical nature and quality of his actions in attacking Mr Douglas with a knife. However, I believe he was deprived of the ability to recognise that his actions in doing so were morally wrong, as in his deluded and psychotic state he believed he was acting in self defence, and he was deprived of the ability to recognise that he was mentally ill or reflect on the content of his beliefs with any measure of sense or composure. About half of all homicides committed by people in acute psychosis are in response to the delusional belief that the affected person is in immediate danger from the victim of the offence.”

75. Dr Nielssen referred to the fitness issue and the prognosis for the Accused’s treatment needs (Exhibit 1, page 9):

Mr Kemball was assessed to be fit to enter a plea and to be fit for trial for this charge, and should remain fit provided he continue to receive treatment with an adequate dose of an effective antipsychotic medication.

He will require long term or indefinite treatment by a forensic mental health service.”

Determination Concerning Defence of Mental Illness

76. Both Professor Greenberg and Dr Nielssen have expressed the opinion that the Accused, as at 28 November 2019, had a major mental illness (either schizophrenia or schizoaffective disorder) which is a disease of the mind with a defect of reason (in the form of multiple delusional beliefs) arising from that disease of the mind. Each of Professor Greenberg and Dr Nielssen consider that although the Accused probably knew the nature and quality of his actions when he killed Mr Douglas, his mental illness so affected and deprived him of the ability to reason that what he was doing was morally wrong so that the Accused has a defence of mental illness available to him.

77. Although there is no legal requirement that medical evidence be adduced to prove the defence of mental illness (Lucas v The Queen (1970) 120 CLR 171 at 174; [1970] HCA 14), the need to establish the elements of the defence makes the calling of medical evidence a practical necessity: Tumanako v R (1992) 64 A Crim R 149 at 160. Juries (and Judges sitting alone) are not bound to accept and act upon expert evidence, but they are not entitled to disregard it capriciously: R v Hall (1988) 36 A Crim R 368 at 370; R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at [44]. A jury (or Judge sitting alone) ought not reject unanimous medical evidence unless there is evidence which can cast doubt upon the medical evidence: R v Jenkins (1963) 64 SR (NSW) 20 at 31; Tumanako v R at 161-163; R v Klamo at [44]-[50].

78. Both the Crown and Ms Shaw submitted that the defence of mental illness had been established in this case.

79. Having regard to the totality of evidence before the Court, I am satisfied beyond reasonable doubt that the Accused caused the death of Mr Douglas by means of a deliberate attack upon him which caused his death. To the extent that it is a necessary component for finding a verdict in this case, I am satisfied beyond reasonable doubt that the Accused intended to kill Mr Douglas. So much is clear from the nature and extent of the knife attack carried out by the Accused.

80. The Accused had a long-standing history of psychiatric illness. His psychiatric condition was well documented and involved periodic hospital admissions as well as treatment in the community. It was the very existence of the Accused’s psychiatric condition that saw him having contact with Mr Douglas who performed a valuable and important function in treating persons with psychiatric conditions in the community.

81. The evidence demonstrates clearly that the Accused was suffering from schizophrenia or a schizoaffective disorder at the time of the tragic events on 28 November 2019. To the extent that there is some evidence that the Accused had consumed alcohol or cannabis that day and that there was a parallel diagnosis of alcohol and cannabis use disorders or substance use disorder, in remission, these conditions did not play any role in the events of 28 November 2019. The Accused was suffering from a substantial pre-existing psychiatric condition in the form of schizophrenia or a schizoaffective disorder which was the operative condition on 28 November 2019. It is clear that the defence of mental illness is available to the Accused in these circumstances.

82. The unanimous psychiatric evidence, given by two eminent and highly experienced forensic psychiatrists, is that the Accused, at the relevant time, had a defect of reason due to a disease of the mind and that this deprived him of the ability to recognise that his actions were morally wrong given his deluded and psychotic state at the time of the incident in which Mr Douglas was killed.

83. The Accused attacked Mr Douglas, effectively out of the blue, whilst in a psychotic state and whilst expressing clearly delusional beliefs concerning a number of persons including Mr Douglas. There is no feature of the evidence in the trial which serves to undermine the opinions of the forensic psychiatrists. Indeed, the evidence fortifies the opinions of the forensic psychiatrists that the defence of mental illness is available in this case.

84. I am satisfied on the balance of probabilities that, at the time of the fatal attack upon Mr Douglas, the Accused suffered from a defect of reason from a disease of the mind, namely schizophrenia or a schizoaffective disorder. I am satisfied on the balance of probabilities that, at that time, the Accused did not know that his actions in killing Mr Douglas were morally wrong. Using the words of Dixon J in The King v Porter at 189-190 (see [16] above), although the Accused knew he was killing, knew how he was killing and knew why he was killing, he was unable to appreciate the wrongness of his actions.

76. The Accused has discharged his onus and proven on the balance of probabilities that:

1. he has a longstanding chronic mental illness of either schizophrenia or schizoaffective disorder;

2. in the lead up to events on 28 November 2019, his mental health was deteriorating;

3. at the time when he killed Mr Douglas, the Accused was labouring under that mental illness which was at law a disease of the mind that so affected his ability to reason that it deprived him of the ability to know what he was doing when he killed Mr Douglas was morally wrong; and

4. his underlying mental condition rendered him unable to reason with a moderate degree of calmness in relation to the moral quality of what he was doing at the time that he caused the death of Mr Douglas.

86. I propose to return a special verdict that the Accused is not guilty by reason of mental illness.

[The Court received victim impact statements from Sean Douglas and Adam Douglas and counsel addressed on the terms of appropriate orders to be made].

Nature of a Verdict of Not Guilty by Reason of Mental Illness

87. Although the effect of the verdict which I propose to return is that the Accused will not be held criminally responsible for his actions as a result of his mental state on 28 November 2019, there is no doubt that his physical acts directly caused the death of Mr Douglas.

88. Given the proposed verdict, it is necessary for the Court to consider what further order ought be made under s.39 Mental Health (Forensic Provisions) Act 1990 which states:

“39    Effect of finding and declaration of mental illness

(1)    If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.

(2)    The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release.

(3)    As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Tribunal of the terms of the order.”

89. The evidence adduced at the trial of the Accused demonstrates a long history of mental illness. Given the entrenched nature of the Accused’s mental illness, it is understandable that Dr Nielssen should state that he will require long-term or indefinite treatment by a forensic mental health service. Given the facts of this case, the appropriate order is that he be detained in a correctional facility or at such place as determined by the Mental Health Review Tribunal until, if the view is formed that it is appropriate, he be released by due process of law.

90. If a jury had tried the Accused for murder, it would have been necessary for the jury to be informed of the legal and practical consequences of a finding of not guilty by reason of mental illness: s.37 Mental Health (Forensic Provisions) Act 1990. This is to ensure that a jury understands the legal and practical consequences of a special verdict of not guilty by reason of mental illness, including the terms of s.39 and the role of the Court and the Mental Health Review Tribunal with respect to the protection of the community and the person who may be acquitted on these grounds.

91. It is important that the community understands that the effect of the findings I have made and the orders which I will make is that the Accused will remain in custody and be held as a forensic patient to come under the supervision of the Mental Health Review Tribunal. The statutory scheme surrounding the Tribunal is such that the Accused will not be released until the Tribunal is satisfied that the safety of any member of the public or of the Accused will not be seriously endangered by his release. The case of the Accused will be reviewed by the Mental Health Review Tribunal as soon as practicable and will be subject to review at six-monthly intervals. If, at some stage in the future, the Accused comes to be released, it may be on conditions and, if any of those conditions are breached, or his mental condition deteriorates to a point where he may be a serious danger to others, the Mental Health Review Tribunal may order that he be apprehended and further detained. In cases such as this, it is important that the community understands the practical reality of the orders which are made.

92. In the circumstances of this case, the effect of my verdict and the orders will be that the Accused will be committed to the long term care and control of the Mental Health Review Tribunal which must not release the Accused into the community unless and until it is satisfied that he will not seriously endanger any person including himself: s.43(a) Mental Health (Forensic Provisions) Act 1990.

Victim Impact Statements

93. The Court has received victim impact statements from Sean Douglas and Adam Douglas, the sons of Mr Douglas.

94. Until 2018, it was not possible for a victim impact statement to be provided to a Court which had returned a verdict of not guilty by reason of mental illness as victim impact statements were confined to use in sentencing proceedings after a plea of guilty or a verdict of guilty. The law was changed in 2018 with the Attorney General, Mr Speakman, saying in the second reading speech for the Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 (Hansard, Legislative Assembly, 17 October 2018):

“Currently, if a defendant is convicted in normal criminal proceedings, the victim is entitled to make a victim impact statement to the court before sentencing. These are a powerful therapeutic tool that allow victims to participate in the criminal justice process. However, at the moment, if the defendant has been found not guilty by reason of mental illness or unfit but not acquitted, there is no scope for a victim to express the harm they have experienced to the court. By allowing victims of forensic patients to make these statements, all victims of serious personal violence offences will have the opportunity to be heard, regardless of the personal circumstances of the offender, …”

95. Section 30L Crimes (Sentencing Procedure) Act 1999 now provides for the making of a victim impact statement in circumstances where there is a verdict of not guilty by reason of mental illness. The victim impact statements in this case serve to demonstrate the importance of this reform.

96. The victim impact statements speak eloquently of the great loss to the Douglas family as a result of the passing of Mr Douglas.

97. It is clear from the victim impact statements that Mr Douglas was a much loved family man who was himself a loving and caring person. His sudden loss has struck at all levels of the Douglas family. It is important for the Court and the community to acknowledge the far-reaching consequences for the family of Mr Douglas resulting from these tragic events.

98. It is also important to note parts of the victim impact statements which raised a very significant matter.

99. Sean Douglas said:

“The date of November 28^th 2019 will now always bear significance to me and my family. When I received the news of my Father’s murder I was completely crushed, all semblance of the world disappeared. Learning that my Dad was murdered by someone he was trying to care for, in a role he did to make a small difference in people’s lives and a job he did with passion and utmost professionalism, still seems incomprehensible.”

100. The statement of Adam Douglas was read to the Court by his wife, Sarah, who is also a mental health professional. In his statement, Adam Douglas said:

“November 28^th will forever be a day of darkness and immeasurable sadness for myself and my family. Having my loving father taken away from me is a pain I’m sure only victims of homicide can begin to understand. But to have that life taken, when he was trying to provide needed support and care for the very person that took his life is an injustice that will never be quantifiable.

Dad was a fantastic Mental Healthcare worker who had a passion for helping those in our society most at need. He was professional, caring and was a champion for improving the mechanisms that support people suffering from mental health issues.”

101. The loss arising from Mr Douglas’ passing extends to the entire community in this State. Mr Douglas was undertaking a most important public duty which was integral to our system of treatment of persons suffering from mental illness. The objects of the Mental Health Act 2007 include the provision of care and treatment to promote the recovery of persons who are mentally ill including the facilitation of care and treatment of those persons through community care facilities as well as in a hospital setting: s.3 Mental Health Act 2007. Our mental health system is based upon a number of principles which include the provision of care and treatment to assist people with mental illness or mental disorder, wherever possible, to live, work and participate in the community: s.68(c) Mental Health Act 2007.

102. It is important for the community of this State that there are health professionals such as Mr Douglas and his colleagues who provide care, support and treatment to persons in the community who are suffering from mental illness. The vast majority of persons treated in the community for mental illness are assisted without health professionals being endangered. However, as is apparent from the tragic events of this case, these duties are carried out in circumstances which are not free from risk.

103. This is not the first occasion where the Court has been called upon to preside at a murder trial where a mentally ill patient being treated in the community killed a mental health professional. Tragic events of a similar type occurred in northern New South Wales in 2009 and were considered in R v Rodriguez [2010] NSWSC 198. At the time when the Court delivered judgment in that case, there was no capacity for a victim impact statement to be made by the family of the deceased person. The Court extended its sympathy to the family of the deceased health professional, his friends and associates with it being noted, as well, that he had been “performing an important public duty, in the interests of the community, at the time of the terrible event”: R v Rodriguez at [58].

104. As a result of the significant reform introduced in 2018, the family of Mr Douglas have a direct voice in these proceedings and it is important that the Court acknowledge what they have said in concluding this case.

105. I express the condolences of the Court to the family, friends and colleagues of Mr Douglas for their great loss. In addition, and importantly, I acknowledge on behalf of the community of New South Wales those health professionals who perform the vital public service of community health support to mentally ill persons in circumstances which, as this case demonstrates, are not free from risk.

106. It is an additional and important feature of the law introduced in 2018 that the victim impact statements will be provided by the Court to the Mental Health Review Tribunal: s.30N(4) Mental Health (Forensic Provisions) Act 1990. That Tribunal exercises an important protective function and it is appropriate that the victim impact statements are available to it in the exercise of its statutory functions concerning the Accused.

107. It is appropriate to acknowledge, as well, the challenges facing the families of persons affected by mental illness. It is clear that the parents of the Accused were doing all that they could reasonably be expected to do to provide support and assistance to their son.

Verdict and Orders

108. In accordance with s.38 Mental Health (Forensic Provisions) Act 1990, I find the Accused not guilty of the charge of murder on the grounds of mental illness.

109. In accordance with s.39(1) Mental Health (Forensic Provisions) Act 1990, I order that Peter John Kemball be detained in a correctional facility or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law.

110. I make the following further directions:

1. the Registrar is to notify the Minister for Health, as soon as practicable, of the making of these orders;

2. the Registrar is to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide to that Tribunal the following documentation:

(1)    a copy of these reasons for verdict and orders;

(2)   the transcript of the trial;

(3)   copies of exhibits from the trial including the reports of Professor Greenberg and Dr Nielssen;

(4)   copies of the victim impact statements of Adam Douglas and Sean Douglas.

3. I direct that the Registrar notify Justice Health, as soon as practicable, of the verdict and orders in this matter and provide to Justice Health copies of the following documents:

(1)   a copy of these reasons for verdict and orders;

(2)   copies of the reports of Professor Greenberg and Dr Nielssen.

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Decision last updated: 04 November 2020