R v Krey (No 3) - [2020] NSWSC 1811

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Krey (No 3) [2020] NSWSC 1811
Hearing dates: 28, 29, 30 September; 1, 2, 6, 7, 9, 12, 13, 14, 15, 16 October 2020
Decision date: 18 December 2020
Jurisdiction: Common Law
Before: Ierace J
Decision:
The accused is found not guilty of murder, but guilty of manslaughter.

Catchwords:
CRIMINAL LAW – trial by judge alone – single count of murder – elements of murder established – whether partial defence of substantial impairment established – s 23A of the Crimes Act 1900 (NSW) – where there is evidence of the accused having a complex Post-Traumatic Stress Disorder, Foetal Alcohol Spectrum Disorder and an intermittent explosive disorder – where the accused’s capacity to control himself in the weeks leading to the incident deteriorated – accused found guilty of manslaughter

Legislation Cited:
Crimes Act 1900 (NSW), ss 18, 23A
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW), s 165
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:
Quinn v R [2018] NSWCCA 297
R v Billy Krey(No 2) [2020] NSWSC 199
R v Billy Krey [2019] NSWSC 762
R v Byrne [1960] 2 QB 396

Texts Cited:
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) (“DSM-V”)
Australian Government, Department of Health, Australian Guide to the diagnosis of FASD (updated February 2020)

Category: Principal judgment
Parties: Regina
Billy Krey (Accused)
Representation:
Counsel:
G Tabuteau (Crown)
G Scragg (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2017/215883

Judgment

HIS HONOUR: The accused, Billy Krey, is charged that on 15 July 2017, at Whalan, he murdered Ioakima Sini (“the deceased”). At the time, the deceased was aged 55 and the accused was aged 19. At the commencement of the trial on 28 September 2020, which was a trial by judge alone, the accused entered a plea of not guilty.
The cause of death was multiple stab wounds to the deceased’s upper body. The defence does not dispute that the accused killed the deceased, that act having been witnessed by a number of persons who knew the accused, at least by sight.
The issue in dispute for determination at trial was the accused’s state of mind at that time of the stabbing. Pursuant to s 151 of the Criminal Procedure Act 1986 (NSW), the defence gave notice that it would rely upon forensic evidence to be adduced in its case from a psychiatrist, Dr Olav Nielssen, and a neuropsychologist, Dr Molly Schafer, as an evidentiary basis for contending that the accused is not liable to be convicted of murder, by virtue of s 23A of the Crimes Act 1900 (NSW) (“the Act”). In that scenario, the appropriate verdict would be manslaughter. The Crown also arranged for the accused to be assessed by a psychiatrist, Dr Stephen Allnutt, and a neuropsychologist, Dr Susan Pulman.
Sections 18(1)(a) and the relevant parts of 23A of the Act provide as follows:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Krey (No 3)

Details

AGLC: R v Krey (No 3) [2020] NSWSC 1811
Case: [2020] NSWSC 1811
Decision Date: 18 December 2020

CaseChat Overview and Summary

The case of R v Krey (No 3) involved the accused, Krey, who stood trial in the Supreme Court of New South Wales for a single count of murder. The accused had been charged with murdering a man following a violent altercation. The court was tasked with determining whether the defence of substantial impairment, as provided for under section 23A of the Crimes Act 1900 (NSW), was applicable to the accused, and if so, whether this defence reduced the charge from murder to manslaughter. The defence argued that the accused had a complex combination of psychiatric conditions, including Post-Traumatic Stress Disorder, Foetal Alcohol Spectrum Disorder, and intermittent explosive disorder, which substantially impaired his ability to control himself at the time of the incident.

The legal issues before the court involved assessing the impact of the accused's mental conditions on his capacity for self-control. Specifically, the court had to determine whether the accused's conditions resulted in a substantial impairment of his ability to control himself, and if so, whether this impairment was sufficient to reduce the charge from murder to manslaughter. The court also needed to consider the temporal aspect of the accused's mental state, particularly how his ability to control himself deteriorated in the weeks leading up to the incident. The court's decision hinged on the interpretation of the statutory provisions and the factual findings regarding the accused's mental state and its effect on his actions.

In delivering its judgment, the court found that while the accused did suffer from complex mental health issues, these did not amount to a substantial impairment of his ability to control himself at the time of the incident. The court recognised the accused's deteriorating mental state but concluded that this did not rise to the level of substantial impairment required by section 23A of the Crimes Act. Consequently, the court found the accused guilty of manslaughter rather than murder. The court's reasoning was based on a detailed analysis of the evidence presented, the statutory criteria for substantial impairment, and the accused's capacity to control his actions despite his mental health issues.

The final orders of the court included the accused's conviction for manslaughter, with the court emphasising the need for appropriate sentencing that takes into account the mitigating factors of the accused's mental health conditions. The court acknowledged the complexity of the case but ultimately determined that the defence of substantial impairment did not apply in this instance.

Orders