R v Rasmussen - [2018] SASC 164

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v RASMUSSEN
Criminal Trial by Judge Alone
[2018] SASC 164
Reasons for Decision of The Honourable Justice Bampton
23 October 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
MENTAL HEALTH - DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
The defendant is charged with murder – he pleaded not guilty and raised the defence of mental incompetence – defendant elected to have the investigation into his mental competence dealt with by Judge sitting alone pursuant to s 269B(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) – the investigation into the defendant’s mental competence was held pursuant to s 269FA of the CLCA – two psychiatrists provided reports and gave evidence that the defendant suffered a mental impairment pursuant to s 269A(1) of the CLCA, namely schizophrenia, and was mentally incompetent at the time of the alleged offence – a third psychiatrist was of the opinion that the defendant suffered depression and was not mentally incompetent at the time of the alleged offence – the Director of Public Prosecutions maintained that the defendant had not established on the balance of probabilities that he was mentally incompetent at the time of the alleged offence – whether the defendant suffers a mental impairment – whether the defendant was mentally incompetent at the time of the alleged offence.
HELD: The evidence of the two psychiatrists who considered that the defendant suffers schizophrenia and was mentally incompetent at the time of the alleged offence preferred to that of the third psychiatrist who considered that the defendant suffered depression and was mentally competent at the time of the alleged offence – finding recorded pursuant to s 269FA(3)(a) that the defendant was mentally incompetent to commit the offence of murder.
Criminal Law Consolidation Act 1935 (SA) s 11, s 269A, s, 269B, s 269C, s 269D, s 269FA, s 269WA, Pt 8A; Mental Health Act 2009 (SA) s 81, referred to.
R v Bowen [2002] SASC 125; R v Janzow [2015] SASC 194; King v Porter (1933) 55 CLR 182; Willgoss v The Queen (1960) 105 CLR 295, considered.

R v RASMUSSEN
[2018] SASC 164
Criminal: Trial by Judge Alone
BAMPTON J.
Introduction
Background to the mental competence investigation
Order that Mr Rasmussen be psychiatrically examined
The investigation into Mr Rasmussen’s mental competence
The events prior to 14 November 2015
Death of Mrs Rasmussen
Attempted suicide
Admission to Royal Adelaide Hospital and detention pursuant to the Mental Health Act
Admission to Ward C3
SACAT appeal
RAH Separation Summary
Discharge to Western Mental Health Team
The incident with the knife at door
The events of 14 November 2015
Mr Rasmussen’s statement
Mr Kelly’s statements
Police statements
Attendance by ambulance officers
The police interview
Cause of death
Toxicology
Mr McPhillips
Mr Rasmussen
Report of Prof Jason White regarding toxicology and intoxication
Assessment whilst in custody
Assessment at QEH
Prison Health Service records
The psychiatric evidence
Dr Furst’s reports
Dr Furst’s first report
Dr Furst’s second report
Dr Furst’s third report
Dr Furst’s fourth report

Dr Nguyen’s reports
Dr Nguyen’s first report
Dr Nguyen’s second report

Dr Kalnins’ reports
Dr Kalnins’ first report
Dr Kalnins’ second report
Dr Kalnins’ third report

Mr Rasmussen’s psychiatric condition before 14 November 2015
Dr Furst’s evidence
Dr Nguyen’s evidence
Dr Kalnins’ evidence

Mr Rasmussen’s psychiatric condition at the time of the alleged offence
Dr Furst’s evidence
Dr Nguyen’s evidence
Dr Kalnins’ evidence

Mr Rasmussen’s psychiatric condition after the alleged offence
Dr Furst’s evidence
Dr Nguyen’s evidence
Dr Kalnins’ evidence

Mr Rasmussen’s psychiatric condition at the time of his interviews with Dr Furst, Dr Nguyen and Dr Kalnins
Dr Furst’s evidence
Dr Nguyen’s evidence
Dr Kalnins’ evidence

The reports received after the hearing of the oral evidence
Dr Furst’s comments on Dr Kalnins’ evidence regarding the diagnosis of schizophrenia and the hearing of voices
Dr Nguyen’s comments on Dr Kalnins’ evidence regarding the diagnosis of schizophrenia and the hearing of voices

Submissions
Conclusion
Introduction

Thor Rasmussen is charged with the murder of Heath Craig McPhillips on 4 November 2015 at Semaphore, contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) (“the alleged offence”).
Background to the mental competence investigation
On 22 August 2016, Mr Rasmussen was interviewed by the forensic psychiatrist, Dr Paul Furst, at the request of his solicitors. In a report dated 19 October 2016 (“Dr Furst’s first report”), Dr Furst stated that, in his opinion, Mr Rasmussen suffered from paranoid schizophrenia, was fit to plead and stand trial, and that he was unable to support a mental impairment defence.
Mr Rasmussen was arraigned in this Court on 14 November 2016 and pleaded not guilty. The matter was listed to proceed to trial commencing on 6 February 2017.
In December 2016, Mr Rasmussen’s solicitors sought Dr Furst’s further opinion regarding:
… whether it is reasonably possible that his schizophrenia made him more likely to hold a genuine belief that Heath Mc Phillips was going to kill in relation to the partial defence of manslaughter by excessive self-defence.
The solicitors provided Dr Furst with an email from Senior Counsel for Mr Rasmussen, Mr Rasmussen’s statement (Exhibit D3), and a copy of Division 2 of the CLCA. Dr Furst re-interviewed Mr Rasmussen on 19 December 2016 and provided a further report dated 16 January 2017 (“Dr Furst’s second report”) answering the question posed by Mr Rasmussen’s solicitors as follows:
From a psychiatric perspective I believe that he did have a genuine belief (albeit one that was delusional) that he was going to be killed and needed to defend himself, and therefore that the conduct to which the charge relates was necessary and reasonable for a defensive purpose.
Dr Furst concluded having reinterviewed Mr Rasmussen that he supported a mental impairment defence.
Order that Mr Rasmussen be psychiatrically examined
As submitted by Senior Counsel for the Director of Public Prosecutions (“the Director”) at a directions hearing on 31 January 2017, the fact of Dr Furst’s change of opinion pointed to a challenging and difficult diagnosis. Accordingly, the trial was vacated and the Court ordered, pursuant to s 269WA of the CLCA, that two further psychiatrists examine Mr Rasmussen and report to the Court. The Court forwarded a letter agreed to by the parties, dated 8 February 2017, to the Director of Forensic Mental Health requesting the nomination of two psychiatrists to examine Mr Rasmussen. The letter incorporated questions drafted by the Director and enclosed relevant documentation, including Dr Furst’s first and second reports. Dr Andris Kalnins and Dr Hoa Nguyen were asked to examine Mr Rasmussen. Due to an administrative error, only Dr Nguyen received the letter dated 8 February 2017.
Dr Kalnins interviewed Mr Rasmussen on 24 April 2017. His report dated 12 June 2017 (“Dr Kalnins’ first report”) concluded that Mr Rasmussen:
… presented with a history of depressed mood in the setting of an adjustment disorder to his personal circumstances and the grief over his mother’s death. In my opinion the symptoms of psychosis had been substance induced as a result of his increasing intake of alcohol and cannabis. A differential diagnosis of paranoid schizophrenia must be considered due to the persistence of low-grade psychotic symptoms.
Dr Kalnins did not have before him a copy of the letter dated 8 February 2017 which enclosed, amongst other documentation, Dr Furst’s second report wherein Dr Furst explained his change of opinion. Dr Kalnins determined that Mr Rasmussen did not have a mental impairment defence and that he was fit to plead.
Dr Nguyen interviewed Mr Rasmussen on 8 May 2017 and reported on 20 July 2017 (“Dr Nguyen’s first report”) that Mr Rasmussen, in his opinion, had a diagnosis of schizophrenia, alcohol use disorder and past cannabis use disorder. Dr Nguyen considered that, at the time of the alleged offence, Mr Rasmussen was experiencing severe delusions of persecution, making him unable to know the wrongfulness of his actions with a moderate degree of sense and composure and, accordingly, that he was mentally incompetent to commit the alleged offence.
As Dr Kalnins did not receive the letter dated 8 February 2017, his further report responding to the questions raised in the letter was sought. Dr Kalnins interviewed Mr Rasmussen via video link interview on 30 June 2017 and in his second report dated 12 July 2017 (“Dr Kalnins’ second report”) stated that Mr Rasmussen’s alleged conduct was “not consistent with a person suffering psychosis to the extent they are unable to control their conduct nor not able to reason with a moderate degree of sense and composure before and during the subject event”.
Dr Furst provided a report dated 4 September 2017 (“Dr Furst’s third report”) responding to Mr Rasmussen’s solicitor’s request for his comment regarding Dr Kalnins’ first and second reports and Dr Nguyen’s first report. Dr Furst reported that, having considered the reports, there was nothing that caused him to change his opinion. He remained of the opinion that Mr Rasmussen suffers from schizophrenia and that this chronic condition would have been present at the time of the alleged offence and that he was therefore suffering from a mental impairment at the time of the alleged offence. Dr Furst said he believed that arising from Mr Rasmussen’s schizophrenia was a delusional belief that he was going to be killed by Mr McPhillips. Dr Furst considered that this belief became particularly intense in the lead up to the alleged offence such that Mr Rasmussen came to the conclusion that he had to kill Mr McPhillips in order to defend himself.
Dr Furst, Dr Kalnins, and Dr Nguyen were then asked by the Court to consider each other’s reports and the statement of Mr Rasmussen (Exhibit D3).[1] The psychiatrists were also asked to watch the film American Psycho (which Mr Rasmussen had viewed on the day of the alleged offence) and to provide their comment on the impact that viewing it may have had on him. Dr Furst’s report dated 28 November 2017 (“Dr Furst’s fourth report”), Dr Kalnins report dated 27 November 2017 (“Dr Kalnins’ third report”), and Dr Nguyen’s report dated 27 November 2017 (“Dr Nguyen’s second report”) all respond to the Court’s request.
[1] Dr Furst was provided with Mr Rasmussen’s statement at the time his second report was requested.
The investigation into Mr Rasmussen’s mental competence
Relying on the opinions of Dr Furst and Dr Nguyen, Mr Rasmussen raised the defence of mental incompetence to commit the alleged offence. The Director, relying on the opinion of Dr Kalnins, contended that it has not been established on the balance of probabilities that Mr Rasmussen was, at the time of the alleged offence, mentally incompetent to commit the offence.
Mr Rasmussen is presumed, pursuant to s 269D of the CLCA, to be mentally competent to commit an offence unless he is found, on an investigation under Part 8A of the CLCA, to have been mentally incompetent to commit the offence.
I held an investigation into Mr Rasmussen’s mental competence on 3 April 2018 pursuant to s 269FA of the CLCA. Mr Rasmussen elected to have the investigation dealt with by a Judge sitting alone pursuant to s 269B(1) of the CLCA.
As at 14 November 2015, s 269C of the CLCA provided:
269C—Mental competence
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a)does not know the nature and quality of the conduct; or
(b)does not know that the conduct is wrong; or
(c)is unable to control the conduct.
All three psychiatrists gave evidence at the s 269FA investigation. Dr Kalnins was the last of the three to give evidence. Following closing submissions and with the parties’ agreement, I sought comment from Dr Furst and Dr Nguyen regarding aspects of the oral evidence given by Dr Kalnins. Dr Furst’s further comment is contained in his report dated 16 June 2018 (“Dr Furst’s fifth report”). Dr Nguyen’s further comment is contained in his report dated 19 June 2018 (“Dr Nguyen’s third report”). Neither party wished to examine Dr Furst or Dr Nguyen further or make further submissions. There was no objection to their further reports being received as exhibits and my having regard to the opinions expressed therein in determining this matter.
The following psychiatric reports were tendered into evidence:
1Dr Furst’s first report,[2] second report,[3] third report,[4] fourth report,[5] and fifth report;[6]
[2]    Exhibit D4.
[3]    Exhibit D5. This report was provided to the Court in January 2017, but was erroneously dated January 2016.
[4]    Exhibit D6.
[5]    Exhibit D7.
[6]    Exhibit D8.
2Dr Kalnins’ first report,[7] second report,[8] and third report;[9] and
[7]    Exhibit P1.
[8]    Exhibit P2.
[9]    Exhibit P3.
3Dr Nguyen’s first report,[10] second report,[11] and third report.[12]
[10] Exhibit D1.
[11] Exhibit D2.
[12] Exhibit D9.
The witness statements filed with the Court as set out in the Index to Brief handed up by the Director were also received into evidence. Mr Rasmussen’s statement provided to his solicitor was also received into evidence.
In considering this matter, I have had regard to all of the documentary evidence. I have viewed DVDs of the film American Psycho, the police record of interview held on 14 November 2015, and the police body camera footage of police attending Mr Rasmussen at the time of his attempted suicide on 3 April 2015.
The events prior to 14 November 2015
Mr Rasmussen is now 34 years of age. He was born in Rockhampton and grew up in Brisbane. He is the only child of Lynda Rasmussen and her second husband, Stephen Rasmussen. As an unexpected child, his father reportedly said that Mr Rasmussen was a “bolt out of the blue” and named him Thor. Stephen Rasmussen died of liver failure when Mr Rasmussen was 24. Mrs Rasmussen had two children by her first marriage. Her elder son, John Kelly, is 17 years older than Mr Rasmussen. Her daughter, Amanda Kelly, who was 14 years older than Mr Rasmussen, took her own life at age 23. Mr Rasmussen was aged 10 and in year 5 at the time of his sister’s suicide. Mr Rasmussen described not really growing up with his siblings as they were older than him. After he left school in year 10, he worked collecting trolleys. He commenced a relationship with his now ex‑partner, Rachelle, in Brisbane and followed her to Melbourne at the age of 18. He obtained a forklift licence, took up casual jobs, and worked for a local council in Melbourne. He and Rachelle were in an “on and off” relationship for about 10 years until 2012. He has not seen Rachelle or their two daughters for a number of years.
Following the breakup of his relationship, Mr Rasmussen moved to Adelaide and lived in a boarding house and share houses. Mr Kelly said in his statement, dated 22 November 2015, that he and Mr Rasmussen lived in a boarding house together for a period of time. Mr Kelly said that, while they were living together, their mother, who had moved to England, decided to move back to Australia and live in Adelaide. He said Mr Rasmussen travelled to England to help her move back in about May 2014. Mr Rasmussen said in his statement that he lived with his mother, following her return to Australia, in rented accommodation for approximately six months before moving with her to the house she bought in Dudley Street, Semaphore (“the Dudley Street house”).
Death of Mrs Rasmussen
Mr Rasmussen’s mother died suddenly of a heart attack on 2 April 2015.
Mr Rasmussen described in his statement that he was completely shocked when he found his mother dead in her bed. He said that for some time before his mother died he had “started to feel [that he] was getting a problem caused by [his] use of marijuana which [he] started using at the age of 15”. He started “hearing voices — ‘what are you doing? Kill yourself’ — all negative thoughts”. He drank alcohol to cope with it. He said that he never had negative thoughts and paranoid thoughts about his mother threatening and killing him, although he did have “unusual arguments” with her at times. He said she was getting a bit senile, and had become a different person and this bothered him. He said that it was a bit like living with a stranger and she had mood swings all of a sudden. She would say, “get out, I don’t want you here”. He said if this happened he would go for a walk and when he returned his mother would not remember what she had said and would ask where he had been. He said that it was very stressful going through this and it contributed to the worsening of his alcohol abuse and his mental health. He said the alcohol numbed the pain.
After his mother died, Mr Rasmussen said that he was all alone. He was “grieving heavily and hearing voices in [his] head countless times per day”. His “head went numb with shock”.
Mr Rasmussen said that after his mother’s death he was detained in hospital for a month. When he was discharged he moved back home. He said that about a month after the discharge he started to feel paranoid that he would be killed. He had to sort out his mother’s funeral on his own and the stress, combined with grief, led to voices in Mr Rasmussen’s head saying, “someone is going to kill you” or just having the feeling that he would be killed. He said that it related to the possibility that he would be killed by other family who “wanted the money from [his] mother’s estate”. Mr Rasmussen said in his statement that in reality no family disputed the will.
Mr Rasmussen said he was feeling like this when Mr Kelly moved into the Dudley Street house with him following their mother’s death. Mr Rasmussen was unhappy about him moving in and he continued to feel paranoid and hear voices. He said that Mr Kelly, who has bipolar disorder, said to him, “I know you don’t want me here”. As Mr Kelly was coming and going, Mr Rasmussen told him, “It’s not a drop-in centre”. However, he said he also told Mr Kelly, “you are entitled to stay here”.
Mr Rasmussen said Mr Kelly’s behaviour was strange because he would bring strangers into the house one at a time. Mr Rasmussen said that he always felt paranoid about them. He said that Mr McPhillips moved into the Dudley Street house a number of weeks after Mr Kelly moved in. He described Mr McPhillips as a transient alcoholic who always wore the same clothes.
Attempted suicide
Mr Rasmussen referred in his statement to being detained after his mother’s death because of his mental health issues but did not refer to his “high lethality” suicide attempt.
On 3 April 2015, the day after Mr Rasmussen’s mother’s death, police were tasked to Henley Beach Road, Torrensville regarding a report that a male, who was sitting at a bus stop, was actively self‑harming. On arrival, police found Mr Rasmussen in possession of a fish filleting knife with deep lacerations to both his wrists and very deep lacerations around his throat. The police Shield Intelligence Report records:
Complied with police request to drop knife. Was searched and first aid rendered until SAAS arrived. Rasmussen said very little to police or SAAS for the length of the entire incident, only stating “Please help me die”.
Admission to Royal Adelaide Hospital and detention pursuant to the Mental Health Act

Mr Rasmussen was admitted to the Royal Adelaide Hospital (“the RAH”) between 3 April 2015 and 9 May 2015. By reference to South Australian Civil and Administrative Tribunal (“SACAT”) records, a level 1 inpatient treatment order authorising the detention of Mr Rasmussen for a maximum of seven days under the Mental Health Act 2009 (SA) (“Mental Health Act”) was made at 9.08 pm on 3 April 2015 in the emergency department of the RAH.
On 4 April 2015 at 12.30 pm, the level 1 order was confirmed by a psychiatrist following an examination of Mr Rasmussen in the intensive care unit of the RAH.
Admission to Ward C3
Mr Rasmussen was transferred to the acute mental health ward C3 on 10 April 2015. On 10 April 2015, the psychiatrist Dr Paul Davis made a level 2 inpatient treatment ordering the detention of Mr Rasmussen for a maximum of 42 days at the RAH.
SACAT appeal
Mr Rasmussen appealed the level 2 inpatient treatment order. His written reasons dated 12 April 2015 for appealing were:
Because there are no reason for me to be here as I have a home to go to, plus stuff from my room has been stolen, my condition and situation will get worse if I stay within this ward. I feel I have been falsely been put in this ward because of my self-harm. I would very much like to get out of this ward and be free from the situation. The last doctor who as put me here in the first place.
On 20 April 2015, the SACAT ordered pursuant to s 81 of the Mental Health Act that the level 2 inpatient treatment order made 10 April 2015 was confirmed.
RAH Separation Summary
The RAH separation summary dated 15 May 2015 records that Mr Rasmussen was depressed for one to two years following a relationship breakup, and travelled to the United Kingdom for three months before moving to Adelaide to escape the trauma of the relationship breakup. He admitted feeling depressed for the last three to six months. He had sought help from a general practitioner a week before admission and was prescribed Escitalopram, an antidepressant.
It is recorded that Mr Rasmussen’s presentation was:
… a first presentation of suicide attempt and whilst attributed this to impulsive behaviour, Thor described long-standing suicide ideation. Thor consumes approximately 24 s/d [standard drinks] per week (beer). He denied binge drinking habits or any illicit drug usage. He has a past history of heavy THC usage as a teenager.
…
During his admission, Thor revealed that he had been experiencing command and derogatory auditory hallucinations for the past 12 months. These hallucinations had been more severe 12 months ago but were still ongoing and troublesome. He describes multiple voices, both male and female, sometimes expressing positive messages but usually expressing messages of judgement and condemnation. He said that the voices sometimes gave him instructions but was unable to give details as to what the specific instructions have been. Thor described these voices as being higher powers with greater authority. Thor also described at this time referential ideation, believing that people looking at him know all the bad things he has done in his life. He also expressed the belief that people could read his thoughts and control him at times. He expressed the belief that he would be ‘chopped up’ in the next life, and that he is a human sacrifice.
It is also recorded that Mr Rasmussen agreed to increase Quetiapine to 150 mg at night, “though this remains far lower than a desired dose of 300‑600 mg [at night]” and it would be appropriate to increase it to a higher dose. Quetiapine is an antipsychotic marketed as Seroquel. Quetiapine and Seroquel are referred to interchangeably in these reasons.
On 13 April 2015, Jemma Bray, a Psychology Registrar, noted in the RAH computer based information system (“CBIS”) record:
He was polite and cooperative during the interview he provided minimal spontaneous speech and most of his speech seemed to be tangential. He provided minimal eye contact and seemed to have a somewhat restricted affect. Thor seemed to be somewhat paranoid about his house being taken away by the government and he made a comment in relation to thinking that the TV was sending him messages.
On 17 April 2015, a clinical review note by Dr J Symon in the CBIS record detailed:
Thor describes approximately 12 month history of feeling depressed and socially withdrawn. He describes guilt over his decision to leave his wife and children two years previously and could not really explain why he left or made this decision.
On subsequent assessment in ward C3 Thor disclosed a number of psychotic symptoms including:
More than 12 months of:
Multiple Hallucinations (Command and derogatory)
Referential Ideation that others know what he has done wrong
Beliefs that he will be cut into pieces in his next life and being a human sacrifice
Passivity phenomena in which he feels that others can read and at times control his thoughts.
Since admission has consistently denied suicidal ideation. However, he continues to present as flat and withdrawn socially.
Current working diagnosis:
Schizophrenia spectrum disorder – 12month plus of untreated symptoms
Depressive episode / Grief
Prior to Mr Rasmussen’s discharge, his treating doctors put in a place a referral management plan for his care by the Western Mental Health Team.
Discharge to Western Mental Health Team
The RAH CBIS record dated 20 April 2015 under the heading “Referral Management Plans” referring Mr Rasmussen to the QEH Port Adelaide (Western Mental Health Team) records:
On subsequent assessment in ward C3 Thor disclosed a number of psychotic symptoms including:
More than 12 months of:
Multiple Hallucinations (Command and derogatory)
Referential Ideation that others know what he has done wrong
Beliefs that he will be cut into pieces in his next life and being a human sacrifice
Passivity phenomena in which he feels that others can read and at times control his thoughts.
Since admission has consistently denied suicidal ideation. However, he continues to present as flat and withdrawn socially. Finds being on the ward difficult as he has been the focus for some of the more intrusive clients on the ward. Feels unsafe in a ward environment.
Current working diagnosis:
Schizophrenia spectrum disorder – 12 month of untreated symptoms
Dr Nick Adams recorded on 30 April 2015 that Mr Rasmussen’s presentation at the hospital was:
First MH [mental health] presentation, with suicide attempt the day after his mother’s unexpected death.
It then emerged he has had psychotic symptoms, especially auditory hallucinations and ideas of reference for 1 year.
His long term relationship in Melbourne broke down 2 years ago and he has been increasingly reclusive, failing to keep contact with his children of 10 and 11, suggesting a prodromal period of several years.
…
Voices have “quietened” over that time, but he is still a little guarded and maybe motivated to “appear good”.
(Emphasis added)
Dr Adams stated that Mr Rasmussen needed longer term antipsychotics and probably antidepressants. Dr Adams also recorded that Mr Rasmussen’s brother, Mr Kelly, had “Bipolar Disorder … with active CMHT involvement”.[13]
[13] CMHT refers to the Community Mental Health Team.
Mr Rasmussen’s discharge medications were Escitalopram 10 mg in the morning and Quetiapine 150 mg at night. Both drugs were prescribed “long term”.
Following Mr Rasmussen’s discharge, Dr Imbi Ehvart recorded during an outpatient medical review on 20 May 2015:[14]
[14] The following acronyms are contained in the medical records. Ax: assessment; FTD: formal thought disorder; AH: auditory hallucination; VH: visual hallucination; MHS: mental health service; SI: suicidal ideation; HI: homicidal ideation; OPD: outpatient department.
No FTD, little to no psychotic content ? may still believe his admission was somehow conspired but not forthcoming. Views admission as ‘punishment’ for attempting suicide, particularly related to its involuntary nature, expressed some dislike/distrust of MHS as a result. … Denies AH/VH/reference SI/HI. No evidence of same.
poor insight, reasonable judgement at this time eg attended OPD, willing to increase dose of seroquel and remain in contact with our service.
Dr Ehvart also noted that Mr Rasmussen “probably would benefit from higher dose still” of Seroquel and increased the dose to 200 mg, noting “(and ideally higher in coming weeks) … continue to build rapport and increase engagement/insight, continue close contact with Thor”. Dr Ehvart recorded:
Ax: depression and psychotic illness. Overall chronic risk remains, however not presenting any acute risks which necessitate admission at this point.
On 1 June 2015, a support therapy worker note recorded that Mr Rasmussen:
States John has been sneaking into house and taking some items without his consent. He said over the weekend there was almost physical contact, alleging that John took off with his papers, printer cartridges & other item. States John is taking anything that he can put his hands on including his prescribed medication without asking him.
On 14 July 2015, Dr Ehvart reviewed Mr Rasmussen and recorded that Mr Rasmussen said, “I have trouble trusting people” and that he had:
flat affect, occasionally brightened, but only briefly. Gave impression of being somewhat guarded/careful in his answers.
monotone delivery. no abnormal themes or FTD
admits to intermittent AH’s in form of whispers “I dont know what they are, but they dont bother me anymore” adding that sometimes they seem to come from the TV.
“Its not like it was before … it was all too much”.
Dr Ehvart noted that Mr Rasmussen had:
on going (?low grade) psychotic symptoms in a man with concurrent depression.
DDx [differential diagnosis] psychotic illness with prominent negative symptoms
Difficult to gauge level of illness. Previous high lethality attempt. Few social supports/contact.
Presently remains at a low to med level risk which may escalate if non-compliant and/or engages in drug use or has another stressful life event.
Dr Ehvart recorded under the heading “Plan” the recommendation to “increase the dose of Quetiapine to 250 mg and then to 300 mg”.
Dr Hollie Williams, an advanced psychiatric trainee, recorded on 25 August 2015 that Mr Rasmussen:
… continues to experience ideas of reference from music, but wasn’t willing to be more specific regarding this. AH have reduced to “whispers”, which he attributed to the effect of quetiapine. Vague paranoid beliefs present but was not specific,
that he was “socially isolated by choice – [saying] ‘I don’t trust people’” and that he was “Generally guarded and suspicious of motives of others”.
On 23 September 2015, Dr Williams noted that Mr Rasmussen:
… continues to experience poorly-defined ideas of reference and “whispering” AH which he associates with listening to “underground music”.
She recorded her impression that Mr Rasmussen “Appears stable, ongoing low‑grade psychotic symptoms and depressed mood” and that he was:
More forthcoming than during previous review, reflecting our improved rapport. Affect restricted, mildly dysphoric, but congruent reactivity noted. Some mild guardedness when discussing probably low-grade psychotic symptoms, but more forthcoming re mood. … Insight limited.
…
Thor keen to cease involvement by mental health services as he finds limited benefit.
The next entry in the medical records is a note of a clinical review on 5 November 2015 by the mental health team (I assume in the absence of Mr Rasmussen) repeating matters noted on 23 September 2015. On 14 November 2015, the mental health triage service received a phone call from a police officer at the Port Adelaide police station stating that Mr Rasmussen had been arrested for a serious offence and seeking mental health information.
Finally, the medical records contain two references to Mr Rasmussen being “AWOL” from ward C3. On 14 April 2015, it was noted “Unknown hx [history] re violence to others” and on 20 April 2015, “May be suicidal, no previous aggression. Command auditory hallucinations”.
The incident with the knife at door
Mr Kelly said in his statement dated 22 November 2015 that a week prior to the alleged offence, Mr Rasmussen told Mr Kelly that he was being sued for child support and he said at the time, “That’s it, it’s all over now” and he was, in Mr Kelly’s words, freaking out over it. Mr Kelly said that Mr Rasmussen had not worked for at least a year and a half and that their mother had always provided for him. Since her death, there had not been anyone to support him financially or emotionally.
Mr Rasmussen and Mr Kelly are the beneficiaries of their mother’s estate, which includes the Dudley Street house in equal shares.
Mr Kelly described that a week before he moved into the Dudley Street house, he went to see Mr Rasmussen to tell him that he was going to move in, to get him used to the idea. Mr Kelly went to the house with Mr McPhillips. He banged on the door of the house, which was in darkness. He said that Mr Rasmussen came to the door with a big knife. He said he announced himself at the door so that Mr Rasmussen knew it was him outside. Mr Kelly said Mr Rasmussen started verbalising unrealistic statements (for example, that Mr Kelly was not moving in) and saying also that he was not going to be a “gimp” or a “slave” for Mr Kelly. Mr Kelly told him that he was moving in, as he owned half of the house, and that he would use “police force” to exercise his rights if need be. Mr Kelly said that he talked his brother down and they all had a drink together.
In his statement dated 21 November 2015, Mr Kelly said that he had been calling out to Mr Rasmussen for about 10 minutes before he answered the door holding a big knife, about 20 cm long. He said Mr Rasmussen was aggressive and said, “you’re not moving in here with me”. Mr Kelly did not know why Mr Rasmussen had the knife “or what might have caused him to come to the door like that”. Mr Kelly thought it was uncharacteristic of Mr Rasmussen to threaten him as he had never done it before. He said that throughout his life Mr Rasmussen had been afraid of him, but that he did not know why.
Mr Rasmussen apologised for his behaviour, things seemed okay, and Mr Rasmussen accepted the fact that they would be sharing a house.
Mr Kelly said he moved into the house shortly after this incident. On 12 and 13 November 2015, Mr McPhillips slept at the house on the couch in the lounge room. During that time, Mr Kelly said that Mr McPhillips had a conversation with Mr Rasmussen whereby he asked if he could move into the house, and Mr Rasmussen said that would be fine. Mr Kelly had previously discussed this with Mr Rasmussen, who was coming around to the idea of having Mr McPhillips stay with them. Mr Kelly did not stay at the house on 12 or 13 November.
The events of 14 November 2015
Mr Rasmussen’s statement
Mr Rasmussen described that on 14 November 2015 he was watching a movie and a “spontaneous arrangement” arose whereby Mr McPhillips asked him to buy a bottle of rum and they both went out to buy the rum. He said that at that point he did not think that Mr McPhillips would kill him, but Mr McPhillips was always looking around and it made him curious. Mr Rasmussen got the impression that Mr McPhillips was not mentally all there or was on some drug. After buying the rum, they went home and shared half of the bottle.
Mr Rasmussen said that in the afternoon of 14 November 2015, Mr McPhillips put American Psycho on. Mr Rasmussen said that during the middle of the movie Mr McPhillips said, “getting any ideas” which is when Mr Rasmussen started to get paranoid. Suddenly, he was looking at Mr McPhillips and what he was doing with his hands in case he was going to get something, like a knife, from under the couch. Part way through the next movie that they watched that night, Easy Rider, Mr Rasmussen said that he “was getting worse and worse and more paranoid that [Mr McPhillips] was going to kill me”. Mr Rasmussen said that he believed Mr McPhillips would kill him at any moment or in his sleep that night. He was certain that Mr McPhillips wanted him dead. He said that he grabbed a hammer from under the couch, where he had placed it after he was discharged from hospital due to his fear that people might try to kill him. He said that Mr McPhillips was sitting on the couch watching TV, he went over to him and hit him multiple times with the hammer. Mr McPhillips stood up and said, “You should have done it first”. Mr Rasmussen thought that Mr McPhillips was saying this to Mr Kelly meaning that Mr Kelly should have done it to Mr Rasmussen first.
Mr Rasmussen said he then ran into his room, grabbed a fishing knife from its sheath, which was under his bed, and stabbed Mr McPhillips until he died. Mr Rasmussen said that he had also hidden the knife under his bed after he was discharged from hospital in case someone tried to kill him. He said that Mr Kelly came out a few minutes later to find Mr McPhillips on the ground and he said, “This guy is dead”, to which Mr Rasmussen said, “Yeah”.
Mr Rasmussen said that Mr Kelly ran to the phone. Mr Rasmussen cleaned his knife and put another knife from the kitchen in Mr McPhillips’ hand. He did this because in the short time between Mr Kelly coming out and going to the phone, he had realised he would get in trouble. Whilst he does not remember saying to Mr Kelly, “You were going to be the next one, but I love you”, he accepts that he said words to this effect.
Mr Rasmussen said that he told the mental health nurse when he was assessed following his arrest that he was fine so he could go home. He said that he did not appreciate how unwell he was at the time, and he did not want to “get detained at the RAH because it is a horrible ward and I didn’t want to go through this again”. He said that when he was first detained in custody, his “mental health was not properly assessed and his mental health has improved 50 percent since then”.
Mr Kelly’s statements
Mr Kelly described in his 21 November 2015 statement that he arrived at the Dudley Street house at about 1.00 pm on 14 November 2015. Mr McPhillips and Mr Rasmussen were watching a DVD, a horror movie, and having a drink. Mr McPhillips told Mr Kelly that he and Mr Rasmussen had discussed Mr McPhillips moving in and that Mr Rasmussen said it was okay. Mr Kelly asked Mr Rasmussen, “is this living arrangement going to be ok?” and Mr Rasmussen replied, “yeah, for now”. Mr Kelly said that the night of 14 November 2015 was to be Mr McPhillips’ first official night at the house.
Mr Kelly said that he had a shower and then went to the chemist with Mr McPhillips. Mr Rasmussen said he would put the movie on hold until Mr McPhillips got back. When they returned, Mr Rasmussen was on his way out and Mr Kelly assumed that he was going to the Thirsty Camel bottle shop. Mr Kelly said that Mr Rasmussen was back in a flash.
Mr Kelly said he had forgotten to get his headache tablets from the chemist and Mr McPhillips offered to go back and get them, which he did.
Sometime in the late afternoon, around 4.00 pm, Mr Kelly took some headache tablets and went to bed to sleep. He said he was woken by a horrific scream. He went to investigate and saw Mr McPhillips on his right side, slumped on the floor and covered in blood from his head down his body. He saw Mr Rasmussen suddenly appear holding a knife in his right hand in a threatening manner. Mr Kelly said, “I recognised the knife as being the same one he answered the door with that night Heath and I came over”. It was a big, long knife, perhaps 20 cms. Mr Rasmussen said to him, “you were next, but I love you”. He emphasised the words “I love you”. He said this twice. Mr Kelly pleaded with Mr Rasmussen “to put the knife down, to calm down”. Mr Kelly said that Mr Rasmussen said, “You know how I don’t like anybody else being here”.[15] He said Mr Rasmussen told him not to phone the police. Mr Kelly said, “This is serious Thor, Heath is dead”. Mr Kelly called 000 on the home phone. The 000 operator said that she would call him back on his mobile phone so that he could be near the body. Mr Kelly went back to Mr McPhillips and saw a knife in his left hand. Mr Kelly said that it was definitely not there before he made the 000 call. He presumed that Mr Rasmussen had put it there. It was smaller than the one that Mr Rasmussen had been holding when he saw him after hearing the scream. Mr Kelly went to take the knife out of Mr McPhillips’ hand so that he could start CPR and Mr Rasmussen said, “Don’t take the knife out”. Mr Kelly said that he felt safe enough to start compressions on Mr McPhillips, which he did. He said that he heard water running and became aware that Mr Rasmussen was cleaning up. He saw him change his clothes. The police arrived and apprehended Mr Rasmussen and as he was being taken out the gate Mr Rasmussen said, “I love you” and “You’ve got to come and find me”.
[15] In his statement dated 22 November 2015, Mr Kelly stated that Mr Rasmussen said “I told you I didn’t want anybody else here”.

In his statement dated 22 November 2015, Mr Kelly described that on 12 November he and Mr McPhillips caught up in the morning and went to the Semaphore Cellars to see whether a bottle of Inner Circle rum that Mr McPhillips had ordered had arrived. The bottle was there and Mr Kelly bought it for him. They walked back to the house and offered Mr Rasmussen a drink. On 14 November 2015, when Mr Kelly arrived home at about 1.00 pm, Mr McPhillips was “still working on his Inner Circle rum and Thor was drinking a bottle of Jack Daniels”, and watching American Psycho.
Police statements
Senior Constable Mark Shuttleworth, who, with Constable Jasmin McDonald, apprehended and handcuffed Mr Rasmussen, said in his statement dated 14 November 2015 that he asked Mr Rasmussen, “did you do this” and he replied, “yes I did”. Constable McDonald said in her statement dated 10 December 2015 that Senior Constable Shuttleworth yelled something to the effect of, “hey did you stab your brother?” and Mr Rasmussen said, “he tried to stab me first”.
Constable Brett Stratford said in his statement dated 10 January 2016 that he attended the Dudley Street house on 14 November 2015. He heard Mr Rasmussen “state something to the effect of ‘he started it’”. Constable Stratford also noted that “In Mr McPhillips’ right hand was a steak knife” and that he used his baton to knock it out of his hand so ambulance officers could attend to him.
Attendance by ambulance officers
Ambulance officers arrived at the Dudley Street house almost immediately after the first police officers at 6.43 pm. They unsuccessfully attempted to resuscitate Mr McPhillips and certified life extinct at 7.11 pm.
The police interview
Mr Rasmussen was taken to the Port Adelaide Police Station and was charged with murder. The recorded interview commenced at 7.54 pm on 14 November 2015.
Mr Rasmussen declined to answer any questions during his interview and told police at the beginning of the interview, “I’m pleading not guilty so I’m going not guilty the whole way. Self-defence”.
At 8.16 pm, the recording equipment was deactivated while Mr Rasmussen spoke to a solicitor. When the recording equipment was reactivated, Mr Rasmussen confirmed that the solicitor had advised him not to participate in the interview. He also confirmed that he did not want to answer any questions.
I note that Mr Rasmussen muttered to himself “Bail, no bail, no bail now. It’s fucking bullshit. I haven’t the fucking money anyway”, while police were out of interview room.
Cause of death
The autopsy on Mr McPhillips’ body was performed by the forensic pathologist, Dr John Gilbert, on 16 November 2015.
In his report dated 20 April 2016, Dr Gilbert reported that death appears to have resulted from the stabs wounds to the chest particularly those to the heart and right lung. One of the stab wounds to the heart would have produced rapid blood loss into the chest cavity with a loss of blood pressure and consciousness occurring within a minute or two of infliction, such that death would have followed very quickly. The stab wounds to the heart would have precluded any successful resuscitation at the scene.
Toxicology
Mr McPhillips
No alcohol was detected in samples taken from the blood, urine or vitreous humour of Mr McPhillips at autopsy. Methylamphetamine was detected in his blood at the relatively low concentration of 0.01 mg per L, as well as a therapeutic concentration of codeine.
Mr Rasmussen
Mr Rasmussen underwent an alcohol breath test at 7.43 pm on 14 November following his arrest, which returned a reading of 0.029 percent. Analysis of a blood sample taken from Mr Rasmussen at about 10.31 pm on 14 November 2015 revealed the presence of Quetiapine at 0.10 mg/L and 11-nor-9-carboxy-r⁹-tetrahydrocannabinol (“THC”) at 15 µg/L. No other drugs or illicit substances or alcohol were detected.
Report of Prof Jason White regarding toxicology and intoxication
The pharmacologist, Prof Jason White, stated his report dated 6 February 2017 that the concentration of methylamphetamine in Mr McPhillips’ blood was a very low one. Prof White stated that it is likely that Mr McPhillips used methylamphetamine many hours, possibly a day or more, prior to his death and the concentration in his blood sample would not have caused him any direct effects at the time of the stabbing. The codeine detected in Mr McPhillips’ blood was not at a level that would induce significant effects in Mr McPhillips’ mental state and behaviour.
Prof White noted that Mr Rasmussen had been prescribed the antidepressant Escitalopram but reported having ceased that medication several months before the alleged offence. He noted that Mr Rasmussen was also prescribed the antipsychotic drug Quetiapine. The information on the packets seized by police indicated that Mr Rasmussen was to take one 200 mg tablet and one 50 mg tablet each night. Prof White also noted that Mr Rasmussen said in his police record of interview that he took 450 mg per night.
Prof White stated that the dose of Quetiapine prescribed to Mr Rasmussen was relatively low and he considered that the amount detected in his blood sample is more consistent with consumption of a 450 mg dose. Prof White said that the usual therapeutic dose of Quetiapine is 400 mg to 800 mg dosage for schizophrenia. One of the main adverse effects of Quetiapine is sleepiness. Prof White stated that for someone such as Mr Rasmussen, who was used to taking Quetiapine, the adverse effects of it would have been minimal during the day. The low concentration in the blood sample indicated that Mr Rasmussen was very unlikely to have experienced significant adverse effects from Quetiapine at the time of the alleged offence.
Prof White noted that Mr Rasmussen reported that he drank alcohol at a rate of around two bottles of whiskey per week. He told Dr Furst that he smoked a cannabis “joint” about once per month and that he smoked cannabis in the days prior to the alleged offence. He also reported to Dr Furst that on the afternoon leading up to the alleged offence he drank half a bottle of rum and was “a bit alco” [sic].
The THC detected indicates that Mr Rasmussen could have smoked cannabis up to a day or more prior to the blood sample being collected. This, in Prof White’s opinion, indicates that it is very unlikely that Mr Rasmussen was under the influence of cannabis at the time of the alleged offence.
Prof White calculated that Mr Rasmussen’s estimated blood alcohol concentration at 6.00 pm on 14 November was 0.055 percent. Therefore, at the time of the alleged offence he was unlikely to have been significantly affected by the alcohol he had consumed. He would not have appeared intoxicated and the impairment of thinking and memory would have been minor only. Prof White stated that some disinhibition may occur at this concentration, but it is very unlikely to be pronounced. The main consequence of Mr Rasmussen’s consumption of alcohol with the Quetiapine present would have been increased likelihood of sedation.
However, Prof White stated that, given that Mr Rasmussen was accustomed to taking both alcohol and Quetiapine, it is unlikely that this sedation would have been significant. Prof White concluded that Mr Rasmussen would not have been significantly affected by the combination of drugs and alcohol revealed by the breath and blood testing.
Assessment whilst in custody
Assessment at QEH
A mental health nurse was asked to see Mr Rasmussen after the Mental Health Team at the Queen Elizabeth Hospital (“the QEH”) were made aware of Mr Rasmussen’s presentation to the emergency department with police officers in the early hours of 15 November 2015. The mental health nurse recorded in the progress notes that they saw Mr Rasmussen at 1.00 am and:
… Reason for being in custody was not made aware at time of presentation, and MHT [mental health team] were asked to review patient briefly for purpose of requiring his evening antipsychotic medication Serequel 250mg Nocte as prescribed previously which he could not access while in custody.
(Emphasis added)
The nurse recorded that Mr Rasmussen’s history on CBIS was noted and that Mr Rasmussen had had previous contact with the mental health team whilst at the RAH earlier in 2015. Mr Rasmussen recognised the nurse and:
… was bright and reactive in affect. It was asked why he was here at the hospital and how things had been. Thor responded that as he preferred not to discuss current forensic situation, however noted that psychiatrically he had been fine. He denied any recent psycho social issues or any deterioration in mental state. He denied any reduction/elevation in mood, any perceptual disturbances of any nature (paranoid/hallucinations) and no thoughts of self harm to himself or others. He stated that he had been studying which has been going well and he has been enjoying that. Thor did state clearly that he is currently on Serequel 250 mg and had ceased his anti-depressant a few months back without any changes in mood. Thor displayed no obvious signs of thought disorder, was clear and [concise] with his content and flow of conversation. Was very polite and appropriate in both behaviour and conversation. No level of agitation or aggression noted. The only point to highlight was his dishevelled appearance. His hair was messy and he had quite a bushy beard. Which was not present while as an inpatient at C3 earlier in the year. ... There was no concerning factors identified with Thor at the time of presentation and this was conveyed for the Med Reg for further assessment and prescribing of required medication. No further input was required from the MHT.
Prison Health Service records
A nursing note in the South Australian Prison Health Service records noted that, at 19.55 pm on 16 November 2015, Mr Rasmussen had:
… no active medical issues. Does take Seroquel nocte, states schizophrenic, meds help, he does not hear voices anymore and helps to sleep.
It is recorded that Mr Rasmussen stated that he “years ago used to be under mental health team but no longer” [sic].
On 12 January 2016, Mr Rasmussen is recorded as stating “the negative thoughts got better once he was able to exercise and go to the gym in B division”. On 27 February 2016, Mr Rasmussen stated that he was “looking forward to continuing his studies — diploma of building/construction when discharged from prison”.
Other than on 12 January 2016, all nursing notes recorded in the Prison Health Service records stated that Mr Rasmussen denied any thoughts of self-harm or harm to others, and denied having delusions or hallucinations.
The psychiatric evidence
Dr Furst and Dr Nguyen were called to give evidence by Mr Rasmussen and Dr Kalnins was called to give evidence by the Director.
I will consider first the psychiatric reports and then the oral evidence given by the psychiatrists by reference to specific topics. Finally, I will consider aspects of Dr Kalnins’ evidence on which Dr Furst and Dr Nguyen provided their comments.
Dr Furst’s first interview with Mr Rasmussen took place over 70 minutes on 22 August 2016, some nine months after the alleged offence. His second interview took place four months later, on 19 December 2016, for an estimated 45 minutes.
Dr Kalnins first interviewed Mr Rasmussen on 24 April 2017, 16 months after the alleged offence, for “just over an hour”. His second interview took place by video link two months later on 30 June 2017 for “less than an hour”.
Dr Nguyen interviewed Mr Rasmussen once on 8 May 2017, 17 months after the alleged offence, for approximately two hours.
Dr Furst’s reports
Dr Furst’s first report
As set out above, Dr Furst concluded in his first report that he was unable to support a mental impairment defence. Dr Furst said in this report that Mr Rasmussen, in his first interview, stated he did not like Mr McPhillips moving in and “I just got this feelin’ that he’d turn on me” and that he hit Mr McPhillips because “I just felt that it needed to be done … I just felt that if I didn’t do it, he’d have done it”. Mr Rasmussen told Dr Furst that in April 2015 his mental state deteriorated. He was experiencing suicidal thoughts as well as derogatory auditory hallucinations. He said he heard lots of voices and it was “pretty full on”. He was admitted to the RAH and diagnosed with schizophrenia. He told Dr Furst that voices lasted for a couple of months and were “just whispers after that”. Mr Rasmussen also stated that he had not heard any voices since his discharge from the RAH and described his mental state leading up to the alleged offence as stable. Dr Furst determined that Mr Rasmussen was, at the time of the alleged offence, “suffering from Schizophrenia and therefore had a condition qualifying as a mental impairment”. However, he considered that Mr Rasmussen was aware of the nature and quality of his actions in hitting the victim with a hammer and then stabbing him with a knife. Dr Furst was of the opinion that Mr Rasmussen’s actions after the stabbing indicated that he knew that his conduct was wrong and that he had a measure of control over his conduct.
Dr Furst’s second report
Dr Furst, having interviewed Mr Rasmussen for a second time, concluded that Mr Rasmussen held:
… a genuine belief (albeit one that was delusional) that he was going to be killed and needed to defend himself, and therefore that the conduct to which the charge relates was necessary and reasonable for a defensive purpose.
Dr Furst explained that, in the first interview, Mr Rasmussen “expressed his beliefs a little less strongly and did not report any other significant psychotic symptoms congruent with a paranoid delusion”, whereas in his second interview, Mr Rasmussen indicated that he had recurring auditory hallucinations after discharge from the RAH. Mr Rasmussen had formed a strong belief that he was going to be killed, so he kept a hammer under the couch for self‑protection. On the night of the alleged offence, Mr Rasmussen held the belief that Mr McPhillips was going to kill him, and that he needed to defend himself.
Dr Furst noted Mr Rasmussen’s statement where Mr Rasmussen:
1Specifically indicated that he had started to get paranoid that he would be killed about a month after leaving the Royal Adelaide Hospital.
2Started to hear voices and kept a hammer and knife in the house because he feared he would be killed.
3Explained that he interpreted Mr McPhillips’ question “getting any ideas” as they were watching a movie together, as well as his actions, as indicating that Mr McPhillips wanted to kill him. Mr Rasmussen said, “I was certain he wanted me dead”.
4Also made reference to Mr McPhillips saying, “You should have done it first”, which Mr Rasmussen interpreted to be a statement to his brother, Mr Kelly, that his brother should have killed him, Mr Rasmussen, first.
5Explained that after the killing when his brother ran to the telephone, he cleaned the knife and put another knife in Mr McPhillips’ hand because “Between John coming out and going to the phone room, I realised I would get in trouble”.
6Said that he told the mental health nurse at the QEH following his arrest that he was fine because he did not want to get detained under the Mental Health Act and that he was not properly assessed in prison.
Dr Furst reported that Mr Rasmussen said that he had read Dr Furst’s first report and “there were a few things that [he] didn’t say” because he was “paranoid before”. Mr Rasmussen clarified during the second interview that the voices had come back after he had left hospital, rather than being continuous since his hospitalisation. He indicated that he could not remember the content of the hallucinations other than “kill yourself” and that there was “no point carrying on, no-one loves ya, no-one wants ya”. He said that the voices would tell him not to do things and controlled his movements. At times, they told him to do things such as to hit someone or leave the house. He told Dr Furst that he was usually able to ignore the voices and he rarely listened to them and that by the time Mr McPhillips moved in “it was too much” and he thought that if he did “certain stuff” the voices may go away.
Mr Rasmussen reported to Dr Furst that, within a few days of his mother’s death, there were days that he would not return to his house because the voices had told him not to go back and “don’t let ‘em do it to you” and every time he left the house he was afraid that there would be someone there to murder him and he had “come to terms with it. If it happens, it happens” as he had “nowhere else to go”.[16] He lived alone in the house until his brother moved in. He told Dr Furst that he did not want to go back to the mental health ward because “I think I’d rather get killed than go back there”. At times, he was able to switch off the feeling that he was going to get killed.
[16] Mr Rasmussen was detained at the RAH from 3 April 2015, the day after his mother's death, to 9 May 2015.
Mr Rasmussen told Dr Furst that he started to think that someone from England or someone from his ex-partner’s family was going to kill him. This prompted him to keep a hammer under the couch for his own protection. His belief that he would be killed escalated to the point that whenever he left the house he would go out the back and have a smoke and would hear voices telling him that he was going to be killed. He also heard a voice from the radio saying, “you had your time”.
Mr Rasmussen told Dr Furst that on 14 November 2015 he was watching movies with Mr McPhillips, who “kept movin’ his hands around” and he thought “maybe he’s goin’ to grab something”. While they were watching American Psycho, Mr McPhillips said to him “You getting any ideas?”. Mr Rasmussen said that it was about halfway through the movie Easy Rider that he started to think that Mr McPhillips was going to kill him. He said, “I wasn’t 100% sure, but I was 80%”. He said he was hearing voices that said, “do it now” and “don’t hesitate”. He said that he felt that he needed to do something because if Mr McPhillips moved in then someone else may move in and “he was goin’ to kill me”. Mr Rasmussen said to Dr Furst, “I really did think that, I really did”. He said that he hit Mr McPhillips with the hammer, expecting him to die.
Mr Rasmussen said that he did not recall saying to his brother, “you were next, but I love you”, but that he agreed generally with what his brother said in his statement. He said that the alleged offence was “just a moment of craziness”.
Dr Furst, in his second report, explained that in his first report, whilst he thought that Mr Rasmussen was likely to have suffered from low-grade psychotic symptoms such as hearing whispers and some vague paranoia at the time of the alleged offence, his account at the first interview and the witness statements did not suggest that he was particularly paranoid. At the time of his first report, Dr Furst considered that what occurred may have been consistent with the dynamics between Mr Rasmussen and his brother rather than delusions, having regard to Mr Kelly’s statement that he told Mr Rasmussen that he would be living in the house and he would use police force to exercise his right to half the house if necessary. However, in light of Mr Rasmussen’s:
1indication that he had a recurrence of auditory hallucinations after leaving the RAH that were derogatory and controlled his movements and, at times, told him to hit others, together with;
2his strong belief (delusion) that he would be killed, that he kept a hammer under the couch for self-protection, and
3his belief (of which he was 80 percent sure) that Mr McPhillips was going to kill him as a result of his interpretation of Mr McPhillips’ movements and what he had said,
Dr Furst considered that Mr Rasmussen did have a genuine belief that his life was at risk and he needed to defend himself. Dr Furst said:
From a psychiatric perspective, I believe that he did have a genuine belief (albeit one that was delusional) that he was going to be killed and needed to defend himself and therefore that the conduct to which the charge relates was necessary and reasonable for a defensive purpose.

Dr Furst acknowledged in his second report that this conclusion was “somewhat different” from his first report. Mr Rasmussen told Dr Furst during the first interview that his mental state in the months leading up to the alleged offence was stable and that he had some auditory hallucinations that were “just whispers” after his discharge from the RAH. Dr Furst said that review of the Western Mental Health Team records[17] indicated that Mr Rasmussen had “vague paranoid beliefs” but did not specify what they were. Having regard to the discrepancy between Mr Rasmussen’s report during the first interview of relatively few symptoms and a stable mental state and his report during the second interview, Dr Furst turned his mind to whether Mr Rasmussen was “fabricating or exaggerating his symptoms in order to obtain a favourable legal result”. Dr Furst determined that the more likely explanation was that Mr Rasmussen was guarded about his history when first interviewed about the alleged offence as a result of his paranoia, and was reluctant to say anything that may have him detained in a mental health facility, but, after an opportunity to reflect in prison and to meet with Dr Furst more than once, he was more prepared to open up. Dr Furst stated that this latter explanation is one that is consistent with Mr Rasmussen’s diagnosis of schizophrenia and not uncommon in his experience. He stated that psychotic patients often understand that others may consider them paranoid but lack the insight to understand that they are. Dr Furst therefore considered that Mr Rasmussen was “probably not feigning or exaggerating his symptoms in retrospect and any inconsistencies are a result of his underlying illness”.
[17] The Western Mental Health Team records are the CBIS records. Certain entries are referred to earlier in these reasons.
Dr Furst stated that, having accepted that Mr Rasmussen formed a paranoid delusion that someone was going to kill him for some weeks prior to the alleged offence, that he had auditory hallucinations that were consistent with this delusion, that he acted upon his delusions prior to the offence by keeping a hammer under the couch as well as his report that Mr McPhillips and Mr Kelly were going to kill him, he needed to reconsider his opinion regarding Mr Rasmussen’s mental competence to commit the offence. Dr Furst considered that it was more likely than not that, at the time of the alleged offence, Mr Rasmussen’s decision to hit Mr McPhillips with the hammer and stab him was based on a delusion that he was going to be killed and that, due to this delusional thinking, he could not reason about the wrongfulness of his actions with a moderate degree of sense.
Dr Furst stated that Mr Rasmussen’s actions after the alleged offence, placing a knife in Mr McPhillips’ hand and washing his knife and clothes, would suggest that he knew what he had done was wrong, or at least illegal, immediately after the offence. Dr Furst did not find this inconsistent with the concept that he could not reason about the wrongfulness at the time of the killing as it is possible for someone to act on the basis of delusions and then realise the enormity of what they have done, and the wrongfulness and the subsequent legal consequences. Dr Furst said that this behaviour does not negate Mr Rasmussen’s explanation for why he killed Mr McPhillips. Accordingly, Dr Furst concluded his second report supporting a defence of mental impairment.
Dr Furst’s third report
Dr Furst’s third report was prepared in response to the request from Mr Rasmussen’s solicitors for his comment on Dr Kalnins’ first and second reports and Dr Nguyen’s first report. Dr Furst stated there is nothing in the reports which caused him to change his opinion and that he agreed with Dr Nguyen.
Dr Furst reiterated that Mr Rasmussen’s schizophrenia is a chronic condition which would have been present at the time of the alleged offence and he therefore would have been suffering a mental impairment at the time of the alleged offence. He considered the delusional belief Mr Rasmussen held that Mr McPhillips was going to kill him became particularly intense and Mr Rasmussen determined that he had no other option but to kill Mr McPhillips in order to defend himself. Dr Furst stated that Mr Rasmussen clearly knew it was illegal but, in order to protect his own life, he erroneously believed that it was not wrong to kill Mr McPhillips — wrong being measured by the standards of everyday people. He also noted that, after the alleged offence, Mr Rasmussen appeared to be very calm and composed. Dr Furst commented that, whilst some patients with active psychosis can be visibly affected by psychosis (particularly those with features of disorganisation), many patients with paranoid psychosis can be very composed, organised and with negative symptoms (such as blunted emotions) and appear nonplussed by major events. Dr Furst said that it is not uncommon for patients to present so composed and guarded that it escapes the detection of psychiatrists, only to be revealed at a later time or in a different setting. Dr Furst cited two cases that have come before this Court as examples of his point.[18] Dr Furst said that disturbed behaviour may be one indicator of psychosis, but it is only one of many different symptoms of schizophrenia and does not provide a reliable indicator of a person’s thought processes.
[18] R v Bowen [2002] SASC 125; R v Janzow [2015] SASC 194.
Dr Furst concluded his third report by repeating that in his view Mr Rasmussen was aware of the nature and quality of his conduct[19] and he was not completely unable to control his actions.[20] However, Mr Rasmussen:
[19] Criminal Law Consolidation Act 1935 (SA) s 269C(a).
[20] Criminal Law Consolidation Act 1935 (SA) s 269C(c).
… had a delusional belief and this was in itself nonsensical, therefore he was unable to reason with any sense about this belief. Any subsequent actions, such as creating the appearance of self-defence, still stemmed from his delusional belief that he was going to be killed and there was no way out of it other than by killing the victim first.
(Emphasis in original)
Therefore, Dr Furst considered that Mr Rasmussen was unable to reason about the wrongfulness of his actions with a “moderate degree of sense and composure”, such that he did not know the conduct was wrong.[21]
[21] Criminal Law Consolidation Act 1935 (SA) s 269C(b).
Dr Furst’s fourth report
In his fourth report, Dr Furst said that the likely effect of watching American Psycho was to heighten Mr Rasmussen’s underlying paranoia. Dr Furst explained that Mr Rasmussen was likely to have been paranoid as a result of schizophrenia and the film would have exacerbated his paranoia. Mr Rasmussen reported that he feared that he would be killed and that he had held this belief since discharge from the acute mental health ward at the RAH. Dr Furst said this belief was fixed to the degree that he kept a knife in his room and a hammer under the couch in case he was attacked. Dr Furst stated that in his paranoid state it is likely that Mr Rasmussen misinterpreted Mr McPhillips’ comments “whilst watching the movie and through the prism of his psychosis and therefore the movie contributed to his paranoid (delusional) belief that he would be killed”.
Dr Furst stated that, in his opinion, it is far less likely that Mr Rasmussen simply did not want Mr McPhillips living in his home and was inspired to impulsively kill him. He said that, in his experience, the killing of another person as an impulsive act of violence based on something as simple as watching a movie would require a particularly severe psychopathic personality. Mr Rasmussen’s history shows that he has no background that would support a psychopathic personality.
Dr Furst concluded his fourth report stating that he does “not believe it is equally likely that Mr Rasmussen simply did not want Mr McPhillips living in his home and that the combination of watching the movie, alcohol (at a level close to the legal driving limit), and drugs (again at a low level of THC) may have disinhibited him to kill” Mr McPhillips. Dr Furst said that without the effect of Mr Rasmussen’s paranoia it is unlikely (but not impossible) that the killing would have occurred.
Dr Nguyen’s reports
Dr Nguyen’s first report
During Dr Nguyen’s interview with Mr Rasmussen on 8 May 2017, Mr Rasmussen admitted experiencing auditory hallucinations. He said that they do not bother him as much, “They’re whispers” and that they would say, “Are you ready? What are you doing? What are you waiting for?”. He said that he understood that the voices wanted to get him into trouble. He reported experiencing paranoia sometimes in gaol, “that it could happen again”, he could get stabbed and he said that he had been “bashed a couple of times”. He said that sometimes he felt “the TV staring at him”. Mr Rasmussen put the phenomena down the side effects of marijuana. He said that he had smoked it for 10 years, at a quarter of an ounce per week. He said that in the last five years, he was using marijuana two to three times per fortnight. Dr Nguyen reported, by reference to the RAH discharge summary for the admission between 3 April 2015 and 9 May 2015, that:
Thor presented to RAH ED via SAAS and SAPOL with lacerations to his left and right wrists and five lacerations to his neck (largest measuring five cm). He was witnessed to self-inflict these injuries at a bus stop with SAPOL and SAAS being called by civilians. … Thor was placed on a level one ITO and once medically stable was transferred to an acute psychiatric bed for ongoing management. Thor is clear that he intended to kill himself with this episode of self-harm. … This presentation occurred in the context of multiple stresses in his life, most recently finding his mother deceased in her bed the day prior. Thor described for going for a walk to clear his head, coming to a bus stop and thinking this was it for him and that he would no longer be a burden on anyone.
Dr Nguyen noted that it is recorded that during the RAH admission Mr Rasmussen revealed “that he had been experiencing command and derogatory auditory hallucinations for the past 12 months. These hallucinations had been more severe 12 months ago but were still ongoing and troublesome”. He described multiple voices both male and female, sometimes expressing positive messages but usually expressing messages of judgment and condemnation. He said the voices sometimes gave him instructions but he was unable to give details as to what the specific instructions had been. Mr Rasmussen described these voices as being “higher powers with greater authority”. He also described referential ideation, believing that people looking at him know all the bad things he has done in his life. He expressed the belief that people could read his thoughts and control him at times. He expressed the belief that he would be “chopped up” in the next life and that he was a “human sacrifice”.
Dr Nguyen noted that in light of these psychotic symptoms, Mr Rasmussen was started on antipsychotic medication. Dr Nguyen noted that Mr Rasmussen described a reduction in auditory hallucinations and no further psychotic symptoms. He ceased taking the antipsychotic Paliperidone following side effects and agreed to increase Quetiapine, an antipsychotic, to 150 mg a night. He was eventually discharged with follow up with the Western Mental Health Team.
Dr Nguyen noted that Mr Rasmussen continued to have regular outpatient appointments. His care was transferred to his general practitioner given his reluctance to continue with the Mental Health Service and “given [his] stable mental state and compliance with Quetiapine”.
Dr Nguyen reported that during his interview with Mr Rasmussen, he appeared to have possible attentional deficits and required some reorientation to the questions. Dr Nguyen said that this may be explained by possible thought disorder. Mr Rasmussen expressed some paranoid ideation during the interview and reported recent auditory hallucinations. Dr Nguyen noted that Mr Rasmussen’s affect appeared to be somewhat indifferent to some of the provocative themes of the interview, his affective reactivity was restricted and he displayed little remorse for the alleged offence. Dr Nguyen noted that Mr Rasmussen appeared to have limited insight into the nature of his illness and the residual symptoms of psychosis.
Dr Nguyen considered, based on Mr Rasmussen’s ongoing presentation at interview with auditory hallucinations, paranoid ideas and thought disorder, that he had a diagnosis of schizophrenia. Dr Nguyen also queried whether he had significant cognitive dysfunction relating to his schizophrenia, which may also be relevant to his abrupt decision to harm himself following his mother’s death and the alleged offence. Dr Nguyen stated that, based on longitudinal history, it would appear that Mr Rasmussen experienced psychotic symptoms for approximately 18 months prior to the alleged offence. He considered that at the time of the alleged offence Mr Rasmussen reported experiencing the symptoms of schizophrenia, characterised by auditory hallucinations and persecutory delusions, that his half-brother and victim were intending to hurt him or kill him. Dr Nguyen said, based on Mr Rasmussen’s report of the auditory hallucinations and the fact that he kept a hammer under his couch due to his perceived threat since his brother moved in, that Mr Rasmussen was experiencing “severe delusions of persecution making him unable to know the wrongfulness of his actions with a moderate degree of sense and composure”. Dr Nguyen concluded that Mr Rasmussen was therefore mentally incompetent to commit the alleged offence.
Dr Nguyen considered that Mr Rasmussen may have been affected by alcohol at the time, which may have made him less inhibited in responding to a threat more rationally. However, the degree of psychosis was of relatively greater significance. He noted that Mr Rasmussen made “a clumsy attempt to conceal his actions and did not make any attempt to decamp”. Dr Nguyen stated that this is probably reflective of his executive dysfunction and probable thought disorder, associated with his psychosis. He said that “there is no evidence to suggest that he was unable to know the nature and quality of his actions or be unable to control” them.
By reference to Prof White’s opinion, Dr Nguyen considered that Mr Rasmussen would not have been significantly affected by the combination of drugs and alcohol found to be present. He attributed Mr Rasmussen’s conduct in arming himself with a knife the week prior, when Mr Kelly came to visit, as being paranoia attributable to schizophrenia. He said that the apology to Mr Kelly after the alleged offence indicated some awareness of the wrongfulness of his behaviour.
Dr Nguyen considered that Mr Rasmussen’s conduct in putting the knife in the hand of Mr McPhillips, washing his clothing, and lying to the police to create a false scenario of self‑defence, “could be suggestive that his thought processes were impaired by his psychosis”.
Dr Nguyen stated that Mr Rasmussen’s assertion of self-defence indicated that he was experiencing persecutory delusions. He said that during the police record of interview Mr Rasmussen displayed “an odd affective congruity to the themes of the interview and did not appear to display the emotional reactivity that one might expect, such as anxiety or other intense affects etc”.
Dr Nguyen’s second report
In his second report dated 27 November 2017, Dr Nguyen said that Mr Rasmussen’s statement details paranoid ideas similar to the account he provided to Dr Nguyen during his interview. Dr Nguyen also noted that Mr Rasmussen said he minimised his symptoms to the mental health nurse when he was assessed following the alleged offence as he wanted to go home and did not want to be readmitted to the RAH mental health ward.
Dr Nguyen considered that it would have been unlikely, based on viewing American Psycho, that Mr Rasmussen would have been inspired to simply kill a man that he did not want living in his home.
In response to the question “Is it an equally possible explanation for the killing that Mr Rasmussen did not want the deceased living in his home, and the combination of alcohol, drugs and watching American Psycho may have made him disinhibited enough to kill the deceased”, Dr Nguyen said that, although it is a possible explanation, he does not believe that “these factors were sufficient enough to lead to the commission of the alleged offence”. He also noted Prof White’s opinion that the estimated alcohol concentration around the time of the alleged offence was 0.055 percent and that Mr Rasmussen was very unlikely to have been under the influence of alcohol or cannabis.
Dr Nguyen said the impact of American Psycho may have played a role in Mr Rasmussen’s delusional thinking and behaviour. His perception of the interactions with Mr McPhillips were influenced by his delusions, which were “probably intensified by the content of the film”.
In conclusion, Dr Nguyen considered the combination of Mr Rasmussen simply not wanting Mr McPhillips in his home, alcohol, drugs and watching the film, is much less likely to have led to the commission of the alleged offence than the probability of Mr Rasmussen’s delusions and psychosis leading him to commit the alleged offence.
Dr Kalnins’ reports
Dr Kalnins’ first report
Dr Kalnins reported that, during his first interview on 24 April 2017, Mr Rasmussen’s affect appeared flat and blunted and his mood revealed mild underlying depression. He said that there was no evidence Mr Rasmussen had disturbed perception such as auditory hallucinations and there appeared to be no evidence of paranoid ideation. Dr Kalnins said that he had reviewed the DVDs of Mr Rasmussen’s arrest and interview. He noted that during the interview Mr Rasmussen appeared subdued and otherwise calm and there was no evidence of unusual presentation. He noted that when detectives left the room Mr Rasmussen appeared calm as he waited for them to return and there was no evidence of psychosis.
Dr Kalnins concluded in his first report that Mr Rasmussen had been admitted to the RAH following a high lethality suicide attempt, this having occurred after his mother’s sudden death. Dr Kalnins noted a history of depression prior to the admission for one to two years, following the break up with his partner and that he has an ongoing significant abuse of alcohol and cannabis. He referred to Mr Rasmussen having provided a history of paranoid thinking and auditory hallucinations and that a review of the documentation indicated his mental state had been reasonably settled in the period of time prior to the alleged offence. Dr Kalnins noted that while Mr Rasmussen provided a history of some thoughts of paranoia towards Mr McPhillips and had described low-grade symptoms of auditory hallucinations, these did not appear to have been of significant extent of severity at the time the alleged offence took place. He said that Mr Rasmussen did not “describe himself to be suffering from a high level of paranoia nor under a severe level of severity of psychosis”.
Dr Kalnins said that the closest analysis of Mr Rasmussen’s mental state at the time of the alleged offence is an examination of the reports of examination prior to and after the offence and review of the video of his arrest. He said that Dr Williams’ report of her assessment in September 2015 indicated a low level of psychotic symptoms. The mental health nurse who examined Mr Rasmussen following the alleged offence indicated that he had presented as bright and reactive, denying any mood or perceptual disturbance. Dr Kalnins said the mental state examination at that time did not indicate evidence of psychosis. He stated that Mr Rasmussen presented as calm with appropriate responses during the police interview. Dr Kalnins concluded that there was no evidence of thought disorder and Mr Rasmussen did not appear to be responding to auditory hallucinations from his review of the reports of examination prior to and after the alleged offence and the video of his arrest.

The Director contended that there is a plethora of evidence which demonstrates that not only did Mr Rasmussen clearly appreciate the legal and moral wrongfulness of what he had done, he was rational in his thoughts and actions and was able to reason about the wrongfulness with a moderate degree of sense and composure, including:
1He hit Mr McPhillips first with a hammer to stupefy him and then calmly retrieved a knife to kill him;
2He had the wherewithal to commit the offence when Mr Kelly was asleep so he could not be stopped, or would be outnumbered by Mr McPhillips and Mr Kelly;
3He created a false scenario of self-defence;
4He told Mr Kelly not to call the police;
5He instructed Mr Kelly not to take the knife out of Mr McPhillips’ hand;
6He wiped the knife, threw the hammer in the bin, and changed his clothes;
7He told the police that “he tried to stab me first” … “it’s self‑defence”; (not, submitted the Director, “I thought he was about to stab me”) in line with his creation of the false scenario of self-defence; and
8He said to Mr Kelly, “you were next, but I love you. I told you I didn’t want anyone in the house”.[130]
[130] It should be noted that in his statement dated 21 November 2015, Mr Kelly stated:
“Thor said to me ‘You were next, but I love you’ He emphasised the words I love you. He said this twice. I started pleading with Thor to put the knife down, to calm down. Thor then said ‘You know how I don’t like anybody else being here’.”
In his statement dated 22 November 2015, Mr Kelly stated:
“I said ‘what the fuck’s happened here’. Thor said “you were next, but I love you” and “I told you I didn’t want anybody else here”.
The Director submitted that the last statement to Mr Kelly is key to Mr Rasmussen’s state of mind. It demonstrated Mr Rasmussen’s ability to make a conscious decision not to kill his brother, moments after killing Mr McPhillips. The Director questioned how Mr Rasmussen could be so impacted by psychosis one moment, such that he had a paranoid delusion that he was going to be killed, but then was able to reason that it would be wrong to kill his brother moments later. The Director submitted that “active psychosis cannot be turned off and on like a switch”.
More importantly, submitted the Director, the statement made by Mr Rasmussen to Mr Kelly demonstrated motive. The Director argued that whilst Dr Furst and Dr Nguyen appeared to disregard this motive as unlikely due to it being outside of the normal way someone would handle the removal of an unwanted person from their home, most homicides involve an offender stepping outside what is considered a social norm when they decide to take a life. It was submitted that Mr Rasmussen had a reason for doing this which was based in reality, not delusion.
Accordingly, the Director submitted that it has not been established on the balance of probabilities that Mr Rasmussen was, at the time of the alleged offence, mentally incompetent to commit the offence.
It was submitted on behalf of Mr Rasmussen that the starting point for considering Mr Rasmussen’s mental state as at 14 November 2015 is the incident at the bus stop on 3 April 2015, when Mr Rasmussen attempted to commit suicide by cutting his throat and wrists. Mr Rasmussen was detained under the Mental Health Act from 3 April 2015 to 9 May 2015. It was pointed out that he unsuccessfully appealed his detention which, it was submitted, demonstrated a lack of insight into his condition. It was also pointed out that his demonstrated dislike of detention and mental health services and could well provide the reason for him to downplay his mental health symptoms on subsequent occasions.
It was submitted that the 3 April 2015 incident set Mr Rasmussen’s contact with mental health service providers into train. It is a proved history of clearly serious mental health issues. Importantly, the history points, at the very least, it was submitted, to symptoms of schizophrenia in the form of auditory hallucinations with severe depression. Mr Rasmussen’s diagnosis at this point was major depression with first presentation psychosis, characterised by auditory hallucinations, referential ideation, and persecutory beliefs.
Dr Furst, in his first report, referred to Mr Rasmussen experiencing derogatory auditory hallucinations and his diagnosis of schizophrenia.
Dr Nguyen considered that Mr Rasmussen was suffering from paranoid schizophrenia, noting that, when he interviewed him in May 2017, Mr Rasmussen was still presenting with psychotic symptoms and that “expanded on the initial diagnosis of first presentation psychosis”.
Dr Kalnins referred to the April 2015 admission as being referrable to depression with an adjustment reaction to his mother’s death, and the symptoms of psychosis being induced by alcohol and cannabis. Dr Kalnins did say a differential diagnosis of paranoid schizophrenia must be considered due to the persistence of low-grade psychotic symptoms.
Both Dr Furst and Dr Nguyen disagreed with Dr Kalnins that the psychosis was brought about by cannabis and/or alcohol.
It was submitted that Mr Rasmussen’s symptoms of auditory hallucinations persisted following his discharge from the RAH.
It is to be noted that Dr Kalnins did not mention that Mr Rasmussen might be feigning or exaggerating mental illness in his contemporaneous notes or reports. However, in evidence, he suggested that this might be the case. Dr Kalnins’ three reports are silent on the topic of feigning symptoms, whereas both Dr Furst and Dr Nguyen addressed this topic.
Dr Furst and Dr Nguyen both gave evidence to the effect that persons suffering schizophrenia often present as understating symptoms of their illness. Dr Kalnins suggested in evidence that Mr Rasmussen appeared to be more focussed on his mental health during his second interview with him. It was submitted on behalf of Mr Rasmussen that Dr Kalnins implied that he was of the view that Mr Rasmussen was “playing up his symptomology” at the second interview.
In cross-examination, Dr Kalnins was asked whether he did mention the question of “playing up his symptomology” in his reports:[131]
[131] T155-156.
A.I have mentioned it — let me see, in my second report — I don’t know, no, I don’t think I have actually mentioned it.
Q.In any report.
A.No, I don’t think I have mentioned that in any report. I may have alluded to it but I haven’t mentioned directly that —
Q.Just a minute, did you make a note in your notes to the effect that he was playing up his symptomology, did you make a note, that’s the question.
A.I have commented what his opinion was about the situation and I left with that feeling but I can’t —
Q.Did you make a note of your feeling.
A.I didn’t make a note of that, no.
Q.If someone is malingering, that is something that you as a psychiatrist when you are assessing someone would look for, isn’t it.
A.Yes.
Q.Did you look for that with Mr Rasmussen.
A.Yes, I did.
Q.But you didn’t make a note that you thought he was up playing his symptoms.
A.No, I didn’t make a note of that, no.
…
Q.When is the first time you have actually articulated that you concluded that Mr Rasmussen was up playing his symptomology.
A.I’m not, I’m not saying that he’s playing up his symptomology, I’m commenting that this was a feeling. Now the issue that I have here is that I have a feeling, I don’t have any factual information to say ‘Well, I think this is happening’ I am just left with that feeling that I am commenting on now.
Q.Why didn’t you put that in the report because it is important.
A.Well, I, at the time I had that uncertainty in my own mind as to whether indeed this is the case but he had emphasised his mental health more at a greater level at that stage and I left it at that. Maybe I should have put my feeling in, yes.
Dr Kalnins was asked whether patients, are usually more forthcoming on a second or subsequent interview and he said, “Not necessarily but it is possible, yes”.
It was submitted that Dr Kalnins’ omission to make any reference to overplaying symptomology in his notes or reports suggests that Dr Kalnins is reconstructing matters in order to justify his position. It was also submitted that in arriving at his opinion Dr Kalnins considered that Mr Rasmussen may nonetheless have been experiencing low grade psychotic symptoms with paranoid ideation and auditory hallucinations. He stated in his first report that Mr Rasmussen was “most likely consuming over proof spirits and may have smoked some cannabis and this may have contributed to his despaired mental state”. It was pointed out that this remark is at odds with the opinions of Dr Furst, Dr Nguyen, and Prof White. The overwhelming conclusion to be drawn from Prof White’s report is that Mr Rasmussen would not have been significantly affected by the combination of drugs and alcohol detected by breath and blood testing. The levels of alcohol and cannabis are low to the point such that, it was contended, Dr Kalnins’ remarks are speculation.
It was pointed out that there is no evidence at all of drug induced psychosis which is what Dr Kalnins was hinting at in his first report, where he clearly postulated the effects of cannabis and alcohol were involved. As such, it was submitted that Dr Kalnins’ opinion should not be relied on.
Conclusion
In determining this matter, I have paid close attention to the matters highlighted by counsel. In particular, I have heeded the Director’s submission that Mr Rasmussen’s report of auditory hallucinations during his second interview with Dr Furst should be treated with caution and scepticism. I have carefully considered whether Mr Rasmussen was feigning his symptoms by reference to the psychiatric opinions. I have also closely considered his conduct during the alleged offence and following, again by reference to the opinions provided by the psychiatrists.
As highlighted by Dr Furst and Dr Nguyen, it is important to view that conduct against the background of Mr Rasmussen’s April 2015 suicide attempt, admission to hospital, and outpatient care. The RAH discharge summary records that during his admission Mr Rasmussen revealed that he had been experiencing command and derogatory auditory hallucinations for the previous 12 months. He reported that they had been more severe 12 months prior to April 2015, but that they were still ongoing and troublesome. He described that the voices sometimes gave him instructions but he was unable to give details as to what the specific instructions were. It was recorded that he expressed the belief that he would be “chopped up in the next life” and that he is a human sacrifice. On 13 April 2015, he told a psychologist that the TV was sending him messages. On 17 April 2015, it was recorded that he had guilt over his decision to leave his family but could not explain why he had left or made the decision to leave. The record again noted his beliefs that he would be cut into pieces in his next life and be a human sacrifice and that at times he feels that others control his thoughts. At that stage, a current working diagnosis of schizophrenia spectrum disorder (12 months plus of untreated symptoms) and depressive episode/grief was made.
The referral management plan dated 20 April 2015 recorded that Mr Rasmussen disclosed, during an assessment in ward C3, a number of psychotic symptoms that had been present for more than 12 months. Reference was made to him feeling unsafe in the ward environment and that his working diagnosis was schizophrenia spectrum disorder with 12 months of untreated symptoms.
On 30 April 2015, Dr Adams, referred to Mr Rasmussen’s presentation at the RAH being a first mental health presentation and that it emerged during the admission that he had had psychotic symptoms, especially auditory hallucinations and ideas of reference for one year. Dr Adams noted that this history, together with the break-up of his relationship, his increasing reclusivity and failure to keep in contact with his family suggested a prodromal period of several years.[132] Dr Adams also noted that Mr Rasmussen reported that the voices had quietened over time but he was still guarded and maybe motivated to appear better than he in fact was. Dr Adams noted that Mr Rasmussen required longer term antipsychotics and probably antidepressants. Mr Rasmussen was discharged with an antidepressant and Quetiapine 150 mg at night. It was noted that the dosage of Quetiapine was below the recommended dosage and should be increased. On discharge, it was recommended that Mr Rasmussen be closely monitored for relapse of major depression or psychotic symptoms.
[132] Refer to Dr Furst’s description of the early symptoms or “prodrome” of schizophrenic illness at [219] above.
During an outpatient review on 20 May 2015, Dr Ehvart queried whether Mr Rasmussen still may have believed his admission was somehow conspired but was not forthcoming and that he viewed his admission as punishment for attempting suicide. Mr Rasmussen expressed dislike and distrust of the mental health service as a result of this belief. Mr Rasmussen denied psychotic symptoms. Dr Ehvart noted that Mr Rasmussen would probably benefit from a higher dose of Quetiapine and increased the dose to 200 mg. On review on 14 July 2015, Dr Ehvart recorded that Mr Rasmussen said he had trouble trusting people and he gave the impression of being somewhat guarded and careful in his answers. Dr Ehvart also recorded that Mr Rasmussen admitted to intermittent auditory hallucinations in the form of whispers, saying he did not know what they were, that they did not bother him anymore and “It’s not like it was before … it was all too much”.[133] I pause to note that during his second interview with Dr Furst, Mr Rasmussen said that he was usually able to ignore the voices, he rarely listened to them, and that by the time Mr McPhillips moved in “it was too much”[134] and he thought that if he did “certain stuff” the voices might go away.
[133] Emphasis added.
[134] Emphasis added.
Dr Ehvart also recorded on 14 July 2015 that Mr Rasmussen had ongoing (questionable low-grade) psychotic symptoms with concurrent depression, that he had a differential diagnosis of psychotic illness with prominent negative symptoms. In noting that it was difficult to gauge Mr Rasmussen’s level of illness, Dr Ehvart presciently noted that he remained at low to medium level risk, which may escalate if he was non‑compliant and/or engaged in drug use or has another stressful life event. Dr Ehvart increased the prescription of Quetiapine to 250 mg at night and planned to increase it to 300 mg.
On 25 August 2015, Dr Williams recorded that Mr Rasmussen continued to have ideas of reference but he was not willing to be more specific regarding this, that his auditory hallucinations had reduced to whispers which he attributed to the effect of his medication, and he had vague paranoid beliefs but was not specific. It was also recorded that he did not trust people and he was generally guarded and suspicious of the motives of others. On 23 September 2015, Dr Williams recorded that Mr Rasmussen continued to experience poorly defined ideas of reference and auditory hallucinations, that he appeared stable with ongoing low‑grade psychotic symptoms and depressed mood. She also recorded that he was more forthcoming that during previous review, reflecting their improved rapport. She noted that Mr Rasmussen had limited insight and he was keen to cease involvement with mental health services as he found this involvement to be of limited benefit.
It is of note that Mr Rasmussen’s disclosures regarding his mental health were only to his treating psychiatrists and the forensic psychiatrists. By comparison, he appeared to have told the Western Mental Health Team support workers and the Prison Health Service nurses that he was well. Some two months after his last contact with the Western Mental Health Team, Mr Rasmussen also reported to a Prison Health Service nurse that “years ago [he] used to be under mental health team but no longer” [sic].
Dr Furst, in providing his opinion, had specific regard to the medical records, together with Mr Rasmussen’s report that his auditory hallucinations had not abated following his discharge from the RAH. Dr Nguyen also paid particular attention to the medical records in providing his opinion. Dr Furst and Dr Nguyen’s references to Mr Rasmussen understating his symptoms, lacking insight, and disclosing psychotic symptoms once rapport is established with medical practitioners are supported by the medical records.
Dr Kalnins did not, on my assessment, pay close attention to the medical records and the observations made by the treating practitioners. He made passing reference to the history of psychotic symptoms and suggested they were the result of cannabis and alcohol use. Whilst he did not preclude the differential diagnosis of schizophrenia, he preferred the diagnosis of depression. He referred to Mr Rasmussen’s condition being apparently managed by 150 mg of Seroquel. However, he appears to have overlooked the information that this was increased by Dr Ehvart to 200 mg and then to 250 mg a month later, with the plan to increase it to 300 mg.
Prof White referred to Mr Rasmussen’s prescribed dosage of 250 mg of Seroquel as being a relatively low one. Prof White said that the usual treatment range for schizophrenia is a dosage of between 400 mg and 800 mg per day. Dr Furst said that it was between 300 mg and 800 mg per day and that, in his view, the prescription of 250 mg was probably too low a dose for Mr Rasmussen.
Mr Rasmussen told police that he was prescribed 250 mg of Seroquel but that he usually took 450 mg at night. He also said, “and I needed a bit more”. He also told police, in relation to the dose of 450 mg, “but I mean they can prescribe for it, I’m sure they can prescribe it, but I don’t know why they don’t, why they didn’t in the first place, but anyway”.
Dr Furst gave evidence that a dose of around 400 mg is in the therapeutic range. He said the key question is for how long Mr Rasmussen was taking this dose because “the thing about antipsychotics though is they don’t really work immediately”. It was his evidence that antipsychotic medication needs to be taken for four to six weeks before it works properly “so if Mr Rasmussen had been taking that medication for four to six weeks at that double dose, it might have been having more of an antipsychotic effect”. It was Dr Furst’s opinion that Mr Rasmussen should have been prescribed about 400 mg a day. However, being on “about 400 mg a day doesn’t necessarily mean that he didn’t have ongoing symptoms”.
Prof White also reported that the concentration of Seroquel would have fallen to a low level by 6.00 pm on 14 November 2015 and it was very unlikely that Mr Rasmussen would have experienced adverse effects of it, for example, sedation.
Dr Nguyen said that he recommended, following his interview in May 2017, that Mr Rasmussen be reassessed as the prescription of 250 mg needed review given the symptoms he described.
Having considered the whole of the evidence, I find Dr Kalnins’ evidence unsatisfactory. In particular:
·his misinterpretation of the statements of Mr Rasmussen, Mr Kelly, Mr Nguyen, and Ms Heller;
·his failure to have sufficient regard to the history as set out in the medical records and the observations recorded by the treating medical practitioners;
·his failure to note the increased doses of Seroquel;
·his omission of a reference in his notes or reports to his “feeling” that Mr Rasmussen was “emphasising his mental health more” during the second interview;
·his reference to there being no evidence of paranoia or suspicion when Mr Rasmussen was left alone by police in the interview room while the camera was still running. Having said he took particular note of these periods, Dr Kalnins did not address the mutterings of Mr Rasmussen referred to earlier in these reasons and characterise or exclude them as a response to auditory hallucinations;
is such that I prefer the evidence of Dr Furst and Dr Nguyen.

Dr Kalnins’ evidence was to the effect that Mr Rasmussen was well prior to, and appeared to remain reasonably well subsequent to, the April 2015 admission. I accept the evidence of Dr Furst and Dr Nguyen to the effect that the medical records do not support this conclusion.
I prefer the evidence of Dr Furst and Dr Nguyen in relation to the diagnosis of schizophrenia. In particular, I rely on Dr Furst’s evidence regarding the occurrence of auditory hallucinations and his reference to the diagnostic criteria for schizophrenia set out in the DSM-V.
I accept Dr Furst’s explanation for his change of opinion. He said in evidence that at the time of his first report he did not have enough information to conclude that it was more probable than not that Mr Rasmussen had a mental impairment at the time of the alleged offence. Following the second interview, Dr Furst altered his view, confirmed the diagnosis of paranoid schizophrenia, and concluded that the further history disclosed by Mr Rasmussen, together with a review of the Western Mental Health records, demonstrated that Mr Rasmussen laboured under a genuine belief, however delusional, that he was going to be killed and needed to kill Mr McPhillips in order to defend himself. Dr Furst carefully questioned whether Mr Rasmussen was feigning his symptoms. Having interrogated this issue, Dr Furst concluded that Mr Rasmussen was probably not feigning and any inconsistencies were as a result of his underlying illness. Accordingly, Dr Furst determined that it was more likely than not that Mr Rasmussen’s decision to kill Mr McPhillips was based on the delusion that he was going to be killed and that he was unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure due to his delusional thinking. Dr Furst referred to Mr Rasmussen’s paranoid behaviour leading up to the alleged offence, for example, hiding the knife and the hammer for his protection.
Dr Kalnins said that Mr Rasmussen’s conduct in coming to the door holding the “big knife” during the incident before Mr Kelly moved in was not necessarily related to psychosis. Dr Nguyen said that this conduct was, in his view, paranoia attributable to psychosis. Dr Furst said that he accepted that Mr Rasmussen had formed a paranoid delusion that someone was going to kill him for some weeks prior to the alleged offence; he did not specifically address this conduct as being attributable to that delusion. Dr Kalnins suggested that disinhibition from alcohol was a high possibility at the time of the alleged offence. In this regard, I prefer the evidence of Prof White to the effect that Mr Rasmussen would not have been significantly affected by the combination of drugs and alcohol. Dr Kalnins did not exclude the possibility that Mr Rasmussen’s conduct on 14 November 2015 was the result of a delusion, saying that it is very much a grey area. Dr Kalnins conceded that it was possible, although not probable, that Mr Rasmussen’s conduct during and after the alleged offence could be consistent with someone who acted under a delusion. He explained that he had not come across cases where an event suddenly happens and “suddenly the next moment there is complete clarity of thinking”. Dr Kalnins considered that the comment Mr Rasmussen made to Mr Kelly to the effect that he did not want anyone moving in was more of an explanation rather than a response to a delusional belief.
In relation to Mr Rasmussen’s conduct immediately after the attack on Mr McPhillips, Dr Furst said, “it is possible for someone to act on the basis of delusions and then realise the enormity of what they have done and the wrongfulness of this and the subsequent legal consequences”. He also gave evidence that after an imminent threat has been dealt with by someone suffering psychosis, they may be able to gain some measure of control and appear calm and composed. Dr Furst explained that Mr Rasmussen’s close relationship with his brother, and the effect of having killed Mr McPhillips, may have influenced him in not continuing with his violent conduct. Dr Furst said that, even being unwell and psychotic, Mr Rasmussen can still appreciate that something very serious has happened and once the initial frenzy in which he committed the attack had dissipated, then perhaps a cold realisation of what had happened started to sink in. Dr Furst, unlike Dr Kalnins, said that he had been involved in a number of homicides in the context of mental illness where, once the heightened paranoia that has caused the homicide has dissipated, there is “sort of a calming after the event”.
Dr Nguyen concluded that Mr Rasmussen, at the time of the alleged offence, was experiencing severe delusions of persecution, making him unable to know the wrongfulness of his actions with a moderate degree of sense and composure. Dr Nguyen considered that Mr Rasmussen’s conduct immediately after the attack and during the police record of interview was related to ongoing symptoms of schizophrenia. Dr Nguyen considered that during his interview with Mr Rasmussen, Mr Rasmussen’s probable thought disorder, though mild, was still present and that he had limited insight into the nature of his illness and residual psychosis. Dr Nguyen was of the opinion that Mr Rasmussen continued to suffer paranoid ideation and auditory hallucinations in custody.
Dr Nguyen and Dr Furst carefully analysed the medical records, the witness statements relied on by the Director, and Mr Rasmussen’s statement. They both considered and rejected the possibility that Mr Rasmussen was feigning. They both similarly considered and rejected the possibility that Mr Rasmussen was not acting as a result of persecutory delusions stemming from paranoid schizophrenia at the time of alleged offence.
I accept Dr Furst’s suggested explanation for why Mr Rasmussen did not disclose details to the mental health nurse following his arrest. Dr Furst said that this conduct was consistent with a person with schizophrenia not wishing to discuss their symptoms. He said it was also consistent with Mr Rasmussen having received advice from a solicitor not to answer any questions. I note at the time of the assessment by the nurse (noting the nurse said the mental health team was asked to briefly review Mr Rasmussen) that Mr Rasmussen was accompanied by police officers. The possibility that Mr Rasmussen did not want to be detained involuntarily in a mental health ward again and was suspicious and guarded about mental health services is supported by reference to the medical records.
The evidence points to Mr Rasmussen being guarded and downplaying the symptoms he was suffering at the time of his RAH admission, during his outpatient care prior to 14 November 2015, and up until the time he disclosed the information discussed by Dr Furst in his second report.
I accept Dr Furst’s and Dr Nguyen’s evidence and am satisfied that Mr Rasmussen suffers a mental illness, namely, schizophrenia which is a mental impairment within the definition of s 269A of the CLCA. I accept their evidence that, arising from his schizophrenia, Mr Rasmussen was of the delusional belief that he was going to be killed by Mr McPhillips. He attacked Mr McPhillips as a result of that delusional belief. He was compelled to act by killing him first, and was unable to reason about the wrongfulness of his actions.[135] I accept Dr Furst’s and Dr Nguyen’s opinions that Mr Rasmussen’s subsequent words and actions, including the creation of the appearance of self-defence, stemmed from that delusional belief. I accept their evidence to the effect that Mr Rasmussen’s composed behaviour after the alleged offence, including his blunted emotions and appearance of being nonplussed by the seriousness of his situation, is behaviour common to patients suffering paranoid psychosis.
[135] Criminal Law Consolidation Act 1935 (SA) s 269C(b).
I find that s 269C(b) of the CLCA is satisfied. At the time of the alleged offence, Mr Rasmussen was suffering psychosis caused by his schizophrenia; specifically, a delusional belief that he was going to be killed. Due to his delusional thinking, Mr Rasmussen could not reason about the wrongfulness of his actions with a moderate degree of sense and composure.
Having considered the whole of the evidence and representations of counsel, I am satisfied that it has been established on the balance of probabilities that Mr Rasmussen was, at the time of the alleged offence, mentally incompetent to commit the offence pursuant to s 269FA(3) of the CLCA.
In accordance with s 269FA(3)(a) of the CLCA, I record a finding that it has been established on the balance of probabilities that Mr Rasmussen was, at the time of the alleged offence, mentally incompetent to commit the offence with which he is charged.