R v Kerollos

[2021] NSWSC 259

Supreme Court

New South Wales

Medium Neutral Citation:

R v Kerollos [2021] NSWSC 259

Hearing dates:

23-26 February 2021

Decision date:

25 March 2021

Jurisdiction:

Common Law

Before:

Hidden AJ

Decision:

Verdict of not guilty by reason of mental illness. Accused directed to be detained.

Catchwords:

CRIMINAL LAW – murder – defence of mental illness – stabbing by accused of his wife – history of mental illness – delusional beliefs that she had been unfaithful and promiscuous

Legislation Cited:

Mental Health (Forensic Provisions) Act 1990 (NSW), s 38(1)

Cases Cited:

Hawkins v The Queen (1994) 179 CLR 500

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

R v M’Naghten (1843) 8 ER 718

The King v Porter (1936) 55 CLR 182

Category:

Principal judgment

Parties:

Regina (Crown)
Mourad Kerollos (Defendant)

Representation:

Counsel:
P Barrett (Crown)
C Davenport SC (Defendant)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
SAS Lawyers (Defendant)

File Number(s):

2019/156203

Publication restriction:

Nil

Judgment

1. The accused, Mourad Kerollos, is on trial before me, sitting without a jury, for the murder of his wife, Gihan Kerollos. It is not in dispute that on the evening of 18 May 2019, outside the Prince of Wales Hospital at Randwick, he stabbed her a number of times in and around the neck and the upper chest, severing her carotid artery and jugular vein and causing her death. There is, in any event, abundant evidence establishing that fact beyond reasonable doubt. The only issue in the case is whether the accused has available to him the defence of mental illness.

2. On that issue I received reports and oral evidence from two respected forensic psychiatrists, to which I shall turn later. The other evidence in the case, relating to the background and circumstances of the tragic incident, is summarised in a comprehensive statement of agreed facts.

Background

3. The accused and the deceased were of Egyptian origin but they married after they migrated to this country. At the time of the death of the deceased they had been married for 24 years. They had three sons, now adults. At the time of the killing the family had been living for some years in a home at Panania.

4. The accused and the deceased were adherents of the Coptic Christian faith. He was employed as a security officer at Auburn Hospital, and she as an administrator at Prince of Wales Hospital.

5. In the period of about two years prior to the killing their marriage declined. This is the subject of a deal of evidence summarised in the statement of agreed facts, based on statements of their sons, clergy at their church, and friends and colleagues of the deceased. The effect of this material can be summarised relatively briefly.

6. In the last two years of the relationship the accused and the deceased started sleeping in separate bedrooms. They argued a lot, but it seems that the accused never hurt her or threatened to do so. In 2016 to 2017 he had had an affair with a woman. However, this relationship ended in 2017 and he confessed it to his wife and members of his church.

7. In the last 12 months the relationship deteriorated further. They would scream at each other, most of their arguments being about how stubborn the accused was. Their arguments usually started over something of a minor nature but escalated into “something big”, as one of the sons described it. They sought counsel from clergy at their church, and at one stage appeared to be motivated to attempt reconciliation. However, by early 2019 they had decided to seek a divorce.

8. From about the end of 2017, the accused began to suspect infidelity on the part of the deceased. He saw a message on her phone from a friend at their church, to which there were attached affectionate emojis, and he went to the home of that friend and threatened him. In fact, he had misinterpreted what was a phone chain message which was entirely innocent.

9. At some stage, he formed the belief that the deceased was having an affair with a man who had been a family friend. However, by early 2019 he had come to believe that she was having affairs with many men and was also being paid for participating in adult movies. He expressed these beliefs to clergymen of his church, telling one of them that he simply wanted her to confess, as he had done when he had had an affair. It is common ground that these beliefs had no foundation. The deceased had not been having an affair with a family friend, let alone indulging in promiscuity or pornography.

10. Spurred by these beliefs, he set about clandestinely recording her phone conversations (and, it would seem, her talking to herself on some occasions). He apparently believed that she was talking to men in pursuit of sexual engagement, and that his recordings would prove that she was. In January 2019, he played a recording to a member of the clergy, who could hear a female voice which he could not identify as that of the deceased, but could not decipher anything the person was saying. In March 2019, he played a recording to another clergyman, who described it as of poor quality with a lot of background noise. He also could hear a woman speaking but could not discern what she was saying.

11. In the evening of 17 May 2019, he played some recordings to his sons and had with him some documents purporting to be transcripts of them. Yet again, they were indecipherable. The young men could hear their mother’s voice but one of them described the sound as “muffled”, while another described it as of poor quality such that he could not make out what she was saying. I shall return to the sons’ evidence about that evening.

12. The day after the killing, 19 May 2019, police attended the Panania home and took possession of some recording equipment belonging to the accused. Early in 2020, one of the forensic psychiatrists, Dr Allnutt, listened to some of the recordings which the accused had claimed would demonstrate the deceased’s sexual misbehaviour. He did not find them entirely inaudible, but what he could hear provided no basis for the accused’s interpretation of them.

13. Over the period apparently from early 2018, the accused sought to monitor the deceased’s communications and movements. He would go through her phone to see who she had been talking to. On an occasion in April 2019, he called her numerous times when she was at a café with some friends and asked her to use the camera on the phone to prove where she was and who she was with.

14. At some time in early 2019, he installed a GPS tracker in the deceased’s car. On one occasion he showed one of his sons some video footage from that tracker of the deceased driving to work. In February 2019, the deceased attended a legal centre at Kingsford for some advice. She had told no one about this appointment. However, when she emerged from the centre and returned to her car, the accused was there and demanded to know what she was doing. She believed, apparently with good reason, that he had tracked the vehicle.

15. From time to time he would take her car keys, and she would have to catch public transport to work. In 2019 he started driving her to work on his days off, and he would remain at the hospital.

16. There had been concern about the accused’s mental health. Not long before the fatal incident the family general practitioner told one of the sons that he believed the accused was suffering from schizophrenia or bipolar disorder. It seems that the accused did not accept this. The accused told that son that he had stopped going to that doctor because he did not like what he heard about his deteriorating mental health. The clergy were also concerned about this issue and considered that he needed medical help. Early in 2019 another general practitioner also expressed the view that he had bipolar disorder.

17. Certainly, this was the view of the deceased herself. Early in 2019, she told her sons that the accused was trying to taint her image with everyone in her life, adding that she did not know why he was doing this. Generally, she would say that the accused’s adverse behaviour was the result of his mental illness. She also complained to friends about his behaviour. In particular, in early May of 2018, she told two friends that he was being “crazy”. Ominously, on 18 May 2019, the day of her death, she sent a text message to one of her friends which included the assertion that he was “getting worse and he really needs medical attention”.

18. In the evening of 17 May, as I have said, the accused played what was said to be recordings of their mother’s conversations to his sons. The deceased was upstairs at the time. Before he did so, he was observed to be rambling and not making a lot of sense. Over a considerable period, apart from playing the recordings, he kept saying that the deceased was cheating on him. Nothing the boys were able to say could make him believe otherwise. At one stage the deceased came downstairs. The accused shouted at her that he wanted to be with his boys. One of the sons said that he had never seen him this angry before. The deceased was crying, saying that they were getting a divorce, but he scoffed at her.

The fatal incident

19. At about midday on 18 May 2019, the deceased left home and travelled to work at the Prince of Wales Hospital. Her shift was due to finish at 8 o’clock that night, and it was expected that the accused would pick her up. At about 1pm the accused left home and drove to Auburn Hospital. He entered the hospital and emerged shortly afterwards, carrying a Coles plastic bag. He drove away from the hospital at about 1.15pm.

20. At some time prior to 8pm the accused drove to Prince of Wales Hospital. Some of his movements upon his arrival were captured by CCTV footage. Having arrived, he entered the main entrance of the hospital in Barker Street with the Coles plastic bag in his hand. There he used his mobile phone. He then left and walked to Easy Street nearby, still carrying the plastic bag. There he is seen to be following the deceased along the footpath. Some minutes later his car was driven at speed, and on the wrong side of the roadway, in the carpark where he had left it. He drove out of the carpark through a closed barrier.

21. Very shortly thereafter, the car was parked in Barker Street and he phoned Triple 0. He told the operator that he had killed his wife. Asked how he had done so, he said with a knife. Police arrived promptly at Barker Street, where the accused was seated in the driver’s seat of his car. He was handcuffed. He was observed to be unsteady on his feet and smelling strongly of alcohol. A half empty bottle of whisky was located in the car. After being cautioned, the accused said that the deceased was on the footpath in Easy Street. Asked where the knife was, he said that it was in the car. It was later located there and observed to be blood stained.

22. Police and ambulance officers arrived at Easy Street where the deceased was lying. Her head was covered by the Coles plastic bag, and when it was removed there was seen to be a large pool of blood underneath her head. She did not appear to be breathing. A deep laceration to the left side of her neck and puncture wounds to her chest were observed. Medical intervention by the ambulance officers was unsuccessful, and she was declared to be deceased.

23. At the scene, police observed the accused crying and mumbling incoherently under his breath, apparently uttering words in a foreign language. He was also seen to be shaking his head and looking up to the sky, as if he were praying. He appeared to be in shock. After the deceased was located he asked how she was. When told that she had died, he again began to cry and shake his head.

24. He later lay on the grass and became unresponsive, making murmuring sounds. Police had to place him in the recovery position and an ambulance attended to treat him. He was taken to Prince of Wales Hospital in a catatonic and unresponsive state. In hospital he was observed to be staring blankly at the ceiling and murmuring under his breath in a foreign language. He was later observed to be extremely confused and dazed, apparently not knowing where he was. Told by a police officer that he was in hospital, he nodded his head and appeared to be shaking and in some form of shock. Later again, he asked whether his wife was dead and, being told by the police officer that she was, he replied, “OK”.

25. At about midnight a doctor found him fit for custody, and he was discharged and conveyed to Maroubra Police Station. He participated in a recorded interview, in the course of which he again admitted having killed the deceased.

26. An autopsy of the deceased was conducted on 21 May 2019. A forensic pathologist noted multiple stab and incised wounds, including a stab wound to the left side of the neck extending through the external carotid artery and jugular vein to the spine. The cause of death was found to be that stab wound to the neck.

The defence

27. Accordingly, I am satisfied beyond reasonable doubt that the accused caused the death of the deceased by a deliberate act. It is at this point that the defence of mental illness arises for consideration: Hawkins v The Queen (1994) 179 CLR 500; R v Minani (2005) 63 NSWLR 490, [2005] NSWCCA 226 at [32] (498). It is not in dispute, and is readily inferred from the evidence, that the accused intended to kill the deceased or to cause her really serious bodily injury. However, given the view I have formed of the matter, it is strictly unnecessary to decide that issue. What I must determine is whether, at the time of the deliberate act causing the death of the deceased, the accused was mentally ill, so as not to be responsible, according to law, for that act: s 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW).

28. That issue is governed by the common law, originating in the 19^th Century M’Naghten Rules: R v M’Naghten (1843) 8 ER 718. Expressed in the language of that time, the test is whether at the time he committed that act the accused was “labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know what he was doing was wrong”. In modern terms “defect of reason, from disease of the mind” means a disordered state of mind engendered by mental illness. These principles have consistently been applied in modern authority and, as enunciated in M’Naghten, the accused bears the burden of establishing that defence on the balance of probabilities.

29. Here, it is not suggested that the accused did not know the nature and quality of his act, that is, that he was stabbing his wife. What is in issue is whether at the time he knew that what he was doing was wrong. It is also well established that this question is directed to his understanding of the moral quality of his act. As Sir Owen Dixon put it in his summing up to a jury in The King v Porter (1936) 55 CLR 182 at 189-90:

The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the 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. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.

The psychiatric evidence

30. The forensic psychiatrists who gave evidence and provided reports were Dr Steven Allnutt, engaged by the accused’s solicitors, and Dr Kerri Eagle, engaged by the Crown. As will be seen, both of them concluded that the defence of mental illness is available. Both had available to them the material in the prosecution brief and medical records relating to the accused, together with a report of a psychologist whom he had been consulting from about 2015 (apparently relating to his marital problems). He was interviewed by Dr Allnutt on 10 January and again on 5 February 2020, and by Dr Eagle on 22 May 2020, on each occasion by AVL to the correctional centre where he was held.

31. A significant event in the accused’s background was the death of his mother about 24 years previously. He had loved her very much and was severely affected by her death, suffering depression at the time. He told both psychiatrists that he had been hearing his mother’s voice in the period leading up to the offence. He told Dr Eagle that he had experienced this since the family moved to Panania in 2015, when problems in the marriage began and the deceased withdrew sexual intimacy from him. The mother’s voice would tell him to look after the deceased and to buy things for her, although no reference was made to infidelity on her part. He told Dr Allnutt that at the time of the offence he was hearing his mother’s voice almost daily. He told both psychiatrists that he also heard other voices, although Dr Allnutt’s report suggests that these were voices of people to whom his mother appeared to be speaking. He also described having had visions of his mother, particularly at stressful times.

32. He told both psychiatrists that at one stage he thought that the man with whom his wife was said to have been having an affair sent people to harm him. He said that on an occasion when he was alone at home, some people came to the front door and threatened him. He reported the matter to police, but they inspected CCTV footage which might have captured this visit and could see nothing. He told Dr Eagle that he had also sensed the presence of spirits, and that he was frequently receiving messages from the television and the radio. These messages would convey that life was hard and he interpreted them as encouragement for him to commit suicide.

33. To both psychiatrists he affirmed his beliefs in the period leading up to the killing about the deceased’s infidelity and sexual profligacy. This included a belief that she had become a sex worker and was concealing the money she earned from that occupation. He suggested to Dr Allnutt that her promiscuity extended to members of the clergy of their church. He concluded this because he saw them “looking at me and her in a different manner”.

34. Over this period he described developing symptoms of depression, including fatigue, loss of energy and impaired concentration. His work deteriorated. To Dr Allnutt he described a loss of interest in things and a feeling that nobody loved him. He also said that he lost a lot of weight and was drinking a lot, half a bottle of whisky daily.

35. He reported that his GP tried to refer him to a psychiatrist but he resisted, saying to Dr Eagle that he was “not crazy”.

36. His account of the offence to both psychiatrists was broadly consistent. He said that he had been taking household bills to his workplace to check the phone numbers that the deceased had been calling, expecting that this would provide evidence of her infidelity. On the afternoon in question, he went to his workplace and removed them from his locker, intending to confront her with them when he picked her up in the evening. He told Dr Allnutt that some bills were missing, and he suspected that she was hiding them. The effect of what he told Dr Allnutt was that the invoices were in a bag in his locker, together with plates and eating utensils, including a knife. He left his workplace with the bag, but was not conscious of the presence of the knife in it.

37. Having arrived at the Prince of Wales Hospital in the evening, he met the deceased outside. He said that she started abusing him, telling him to stay away and that she did not want to know him. He asked her about the bills, voicing his suspicion that she was using the phone to call men, but she again told him to stay away and that he was “a crazy man.” He called her a liar. He went to take the bills out of the bag, he said, “and the knife came with them.” There was “a fight”, and his next recollection was seeing blood on the knife. He said that he called the police, thinking that she was hurt but not that she had been killed.

30. His account to Dr Eagle was that when he saw the deceased outside the hospital she was nervous and she told him that she did not want to go with him. He suspected that she “wanted to meet someone.” He said that he was hearing the voices of friends of his mother yelling and screaming, but he could not decipher what they were saying. He wanted to show the deceased the bills. He put his hand in the bag to get them and picked up the knife, but he could not recall “what happened after that.” He denied having intentionally brought the knife with him.

31. Both psychiatrists were of the opinion that at the relevant time, the accused was suffering a psychosis, which Dr Eagle described in oral evidence as “a severe psychiatric disorder and a severe mental illness.” Dr Allnutt noted that the accused “manifested a constellation of symptoms consistent with a major depressive episode.” He was of the view that he was likely to have suffered from a mood disorder, fluctuating throughout the years, or a persistent depressive disorder. He believed that the accused was likely to have suffered “a significant deterioration in his mood starting in January 2019 and developed a major depressive condition at that stage.”

32. Dr Allnutt noted the accused’s “lengthy history of preoccupation with his wife’s suspected infidelity” which is disclosed as having been “relatively persistent and chronic.” The doctor considered it reasonable to conclude that he had “a delusion of infidelity related to his wife; that is, a fixed belief with extreme conviction in the absence of convincing evidence and which is not held by others in the same demographic community.” He added that while that belief was not bizarre on its face, the accused’s belief that his wife’s behaviour extended into involvement in pornographic movies and casual sex with a variety of people, including friends and members of the clergy, placed the belief “towards the more bizarre side of the spectrum.” This, he reported, was consistent with a delusional belief of infidelity.

33. Dr Eagle formed the opinion that the accused at the relevant time had a psychotic disorder, which might be “a major depressive episode with psychotic features, or a chronic psychotic disorder such as schizophrenia or schizoaffective disorder.” She referred to his history of delusions and, in particular, “a systematised belief, associated with morbid jealousy and in the absence of any apparent proof, that his wife was acting as a sex worker and having affairs (delusion, infidelity or Othello syndrome)”. She explained in oral evidence that by the Othello syndrome, she was referring to only one of a cluster of psychotic symptoms that the accused had displayed, and that it was a reference more importantly to the “morbid jealousy that is associated with a delusion of infidelity that is given rise to from the delusion itself...”

34. Dr Eagle noted that the accused appeared “to have deteriorated in his level of function, becoming increasingly preoccupied with his beliefs regarding his wife’s perceived infidelity.” She also noted his description of a number of symptoms of depression in the period leading up to the offence, which she saw as indicating “either a co-morbid major depressive disorder, schizoaffective disorder, or a depressive episode with psychotic features.”

35. Dr Eagle, who interviewed the accused some months after Dr Allnutt, had access to Justice Health records showing that the accused was being treated for psychosis, and prior to giving oral evidence both psychiatrists were supplied with recent Justice Health records showing that he continued to be treated with anti-psychotic medication, as well as an antidepressant. Dr Allnutt gave evidence that his main diagnosis had been “a mood disorder with a secondary psychosis or a delusional disorder with a secondary depression.” In the light of the Justice Health material, he thought it probable that the diagnosis should be “a primary psychotic disorder, rather than a primary mood disorder, and that the depression is secondary to the psychosis…”

36. In the event, both psychiatrists agreed that the accused was psychotic at the time of the killing, however that psychosis might be characterised in the discipline of psychiatry. Addressing the M’Naghten criteria, they were both of the opinion that he was suffering from a disease of the mind which engendered a defect of reason at that time. As I have said, Dr Eagle described psychosis as a severe psychiatric condition. In her report, she wrote that it can “result in impairments in judgment, the capacity to reason, the ability to interpret reality, emotional regulation and the ability to understand events as they transpire.” She described it as “inherently associated with severe disturbances in thinking, mood and behaviour.” She added that depressive symptoms can also cause impairment of that kind.

37. In his report, Dr Allnutt expressed the view that the accused’s depressive symptoms and delusional beliefs were both present at the time of the killing. In her report, Dr Eagle expressed the view that he was “experiencing a number of symptoms including delusions, perceptual disturbances, and a severe disturbance of his mood”, and that it was probable that these symptoms “would have impaired his ability to concentrate, interpret events, reason, and problem solve.” Both psychiatrists noted that he was affected by alcohol at the time, which could have contributed to disinhibition on his part, but each made it clear that psychosis appears to have been the driving factor.

38. Returning to the M’Naghten criteria, both psychiatrists considered that the accused would have understood the nature and quality of his act, but would not have been able to reason that it was morally wrong.

39. Dr Allnutt noted the accused’s poor recollection of the fatal event, and reported that it would be difficult to know “his reasoning process at the actual time of the alleged offence.” He added, however, that it would be reasonable to say that he was “vulnerable to an emotional response” to whatever the deceased’s conduct might have been at that time, against “a background of a chronic long-term delusional belief about her infidelity as well as feelings of jealousy.” In his report, the doctor expressed his conclusion in this way:

“It is unclear to me whether he arrived at the scene of the crime with the intention of harming her, but having incorporated her into a pathological delusional belief system, it would be reasonable to conclude that any decision-making he made at the material time about his wife would have been influenced by an irrational belief system providing justification based on a delusional belief system which would have undermined his capacity for moral judgement, and on that basis he would have been unable to reason about the matter with a moderate degree of sense and composure, as a person of normal mind would. This would afford him a defence of mental illness.”

48. In her report, based on the material she had, Dr Eagle concluded:

“… I am of the view that Mr Kerollos’ thought processes appeared to be significantly impaired by his symptoms of psychosis, and in particular his delusion of infidelity. His capacity to reason may have been further impaired by his reported experience of hearing auditory hallucinations, that he describes as noises, potentially increasing his confusion and heightened emotional response to the situation. At the time of the incident, Mr Kerollos appeared to be acting in response to a delusion of infidelity and in the context of distressing auditory hallucinations. He was susceptible, due to his illness, to a heightened emotional response. His judgment and emotional response would likely have been further impaired by his alcohol intoxication. 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.”

49. Counsel for the accused, Ms Davenport SC, submitted that the defence of mental illness had been made out, and the Crown prosecutor accepted as much. I am satisfied that it has been established. The evidence of the two psychiatrists is compelling, and is consistent with the other evidence in the case: the observations by family members and others of the accused’s deteriorating mental state in the period leading up to the killing, and the observations of him by police on the night of the fatal incident. This is not the typical case, sadly all too common, of violence inflicted upon a woman by a controlling, jealous and suspicious husband. This tragic killing was plainly the product of mental illness in circumstances meeting the legal elements of the defence.

Verdict

50. Accordingly, I find the accused not guilty by reason of mental illness. Of course, this does not mean that he will be released. He will be detained, subject to the provisions of the Mental Health (Forensic Provisions) Act. He will be subject to a compellable regime of treatment and rehabilitation, under the supervision of the Mental Health Review Tribunal. He is likely to remain detained for some years, eventually being allowed increasing amounts of leave until he is released. When released, he is likely to be subject to enforceable conditions relating to his behaviour and continued acceptance of treatment for a further lengthy period. The Tribunal would allow such leave or release only if it were satisfied that to do so would not seriously endanger any member of the public, or the accused himself.

51. I order that the accused be detained at a correctional centre, or such other place as may from time to time be directed by the Mental Health Review Tribunal, until released by due process of law.

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Decision last updated: 25 March 2021