Regina v Kinloch

[2004] NSWSC 998

CITATION:	Regina v Kinloch [2004] NSWSC 998
HEARING DATE(S):	11/10/04, 12/10/04, 13/10/04
JUDGMENT DATE:	29 October 2004
JURISDICTION:	Common Law Criminal List
JUDGMENT OF:	M W Campbell AJ
DECISION:	Not guilty by reason of mental illness. Order under s39 of Mental Health (Criminal Procedure) Act 1990.
CATCHWORDS:	Murder - defence of mental illness.
LEGISLATION CITED:	Criminal Procedure Act 1986 ss132,133 Mental Health Act 1990 Mental Health (Criminal Procedure) Act 1990 ss37,38,39
CASES CITED:	Fleming v R (1998) 197 CLR 250 Hawkins v The Queen [1994] 179 CLR 500 Regina vMcNaughton (1853) 8 ER 718 Rex v Porter (1933) 55 CLR 182 Rex v Sodeman (1943) 455 CLR 191
PARTIES :	Regina Gregory Philip Matthew KINLOCH
FILE NUMBER(S):	SC 04/7003
COUNSEL:	P K Lynch (Crown) J S Stratton SC (Accused)
SOLICITORS:	N Lawless - DPP (Crown) A Goodridge - (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

M W CAMPBELL AJ

Friday 29 October 2004

04/7003/

Regina v Gregory Philip Matthew KINLOCH

JUDGMENT

1 M W CAMPBELL AJ: On 11 October 2004 Gregory Philip Matthew Kinloch was indicted before me on a charge of murder, namely, that on 28 August 2003 at North Ryde he did murder June Mary Booth.

2 The accused pleaded not guilty. He elected to be tried by a Judge alone pursuant to s 132 of the Criminal Procedure Act 1986. The Director of Public Prosecutions gave the necessary consent.

3 It is appropriate before commencing upon this judgment that I should remind myself of the provisions of subsections 133(2) and (3) of the Criminal Procedure Act 1986 which provide:

“133 (1)……..
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”

and my duty to give reasons for my decision (See Flemingv R (1998) 197 CLR 250.

4 It is also appropriate for me to note briefly the restricted issues upon which Counsel submit that the matter falls to be determined which is not to ignore that, before I reach a verdict, I must be myself satisfied that it is the correct one to the standard to which I refer later.

5 As the case was opened by both Counsel the only disputed issue was whether the accused should be found not guilty of murder but guilty of manslaughter by reason of substantial impairment by abnormality of mind, on the one hand, or not guilty on the grounds of mental illness, on the other.

6 Leaving aside questions of onus it was anticipated at that stage that the forensic psychiatrist to be called by the Crown would favour the first alternative, whereas it was expected that the two forensic psychiatrists to be called by the defence would favour the second, albeit supporting the first if their views were not accepted on the second.

7 In the event, having been informed of some additional material, Dr Allnutt, the psychiatrist called by the Crown, gave evidence in chief supporting the defence of mental illness.

8 Thus I approach my task of reaching a verdict with the knowledge that all three of the experienced and well respected forensic psychiatrists who have given evidence support the defence of not guilty on the ground of mental illness.

9 It is convenient for me now to remind myself that I would only decline to act on the evidence of the psychiatrists if I thought that there is other evidence which outweighs the psychiatric evidence, or if I thought that the facts differ from those on which the psychiatrists proceeded, or if I thought that the reasons expressed by the psychiatrists for their opinions do not support their conclusions. As it happens, I think none of those things.

10 Before the two defences to which I have referred become relevant to this trial I must be satisfied by the Crown beyond reasonable doubt of all the necessary matters which it has to establish in order to justify a conviction for murder. As I have indicated Mr Stratton SC who appeared for the accused did not submit that I should not be so satisfied.

11 The evidence establishes that at about 2.45 pm on Thursday 28 August 2003 Mrs Booth, a well respected widow who had long lived in the area, was passing along a concrete path in Greenwood Park North Ryde on her way home from a visit to a church service at the Wesley Mission, when she came upon the accused. He had been wandering in the Park under circumstances to which I shall come later.

12 The evidence also establishes beyond reasonable doubt that the accused then killed Mrs Booth by compression on her throat. He dragged her body partially into some bushes alongside a creek in the park. The body was not concealed and was about five metres from the path. Mrs Booth was not molested in any other way and her handbag, which was left by the path, was not disturbed. Nothing was taken from it. A plastic bag Mrs Booth was carrying was placed over her face.

13 At about this time Mrs Brennan, a passer-by, saw, I am satisfied, the accused come from the creek area where Mrs Booth’s body was found. He was acting strangely, bent over and appeared to be removing a large amount of saliva from his mouth with his hands. He returned to the creek area. His behaviour and appearance were such as to frighten Mrs Brennan who hurried away and also advised another passer-by to be careful.

14 Ms Liu was returning along the path from the University to her home at about 5.10 pm, when, whilst crossing a small bridge over the creek, she saw Mrs Booth’s body. She was joined by Mrs O’Neill and between them they telephoned the police.

15 A little later on that day the accused drove a car onto the wrong side of Dunning Avenue Rosebery and collided with a tree. No other vehicle was involved and there was no apparent reason for this action. The accused told an ambulance officer that he had not been wearing a seat belt and had been travelling at around 80 to 120 kilometres an hour. The car had been stolen and showed indications that the accused had been living in it.

16 The accused hit his head on the windscreen and suffered minor facial injuries. He was taken to Royal Prince Alfred Hospital. It was later discovered that he had also suffered a pneumothorax for which he was treated. He remained in the hospital until 4 September 2003. He was under police guard during that time relating to the stolen car.

17 The accused’s mental state soon attracted the attention of psychiatrists at the hospital. He was most often seen by Dr Morris, psychiatry registrar, and Dr Gribble, Senior Staff Specialist. He told them, amongst other things, “that he lived on the streets to ‘clarify’ God’s word”. He also said that “he had noticed a pattern whereby bad things he had previously done caused events such as the war in former Yugoslavia, September 11 and the Bali bombing”. He described a battle between God and the devil, in which the forces of each could control his actions and thoughts.

18 The accused was assessed as being psychotic. He refused pain relief, antibiotics and most food. He said that, because his accident was probably the work of the devil, medical and nursing staff were ministering to the work of the devil and he would therefore not take tablets.

19 His mental condition was such that, after psychiatric review on 1 September 2003, he was scheduled as mentally ill under the Mental Health Act 1990. It is to be noted that this action was taken before the accused was linked with the death of Mrs Booth.

20 Later on that day fingerprints on the bag placed over Mrs Booth’s face led police to the accused at the hospital. He was arrested and said “I don’t know what happened. Something inside made me do it.”

21 The accused had a history of psychiatric difficulties which are set out in considerable detail in the reports of Dr Allnutt and Doctors Lucas and Westmore who were called by the defence. In view of the unanimity of ultimate opinion on the part of the psychiatrists I do not need to go to that material. I should, however, observe that the histories are well supported by the impressive evidence of the accused’s mother and other documentation.

22 Dr Allnutt’s report contains, amongst many other things, an account of the accused’s movements and thoughts in the last six months or so before the events of 28 August 2003. It is appropriate to refer to some of the material he had recorded.

23 In May 2003 the accused was living with his parents, although in separate quarters, at Laguna. He gave an account to Dr Allnutt as follows:

“He began to feel that living with his parents was not being productive. He decided to move back to the city in May 2003.
In may 2003 he drove his car to Redfern in the Newtown area. He parked his car and spent the next month living in the city itinerant, sleeping in his car. His purpose was to approach people to ask them if they had any queries about the bible. He felt that he had a mission to spread God’s word. He was feeling again like he was a servant of God.
He stopped using cannabis in approximately 2003 and had not used any between February 2003 and May 2003. He wanted to come to terms with his thoughts. While in Sydney he was looking for a group who he wanted to have a confrontation with. This would give him an opportunity to address his concerns. He was unable to find this group and realised that he was not in the right place.
At the end of June 2003 he returned to his parent’s place. He recalled that he was unkempt, he was unwashed. He felt like he was getting run down. He wasn’t working and he hadn’t been eating properly. He had avoided food because of that belief that this was a service he was doing for God, to fast and not eat properly.
Returning to his parents he remained there for one to two weeks. He could not recall anything out of the ordinary occurring. There were still ongoing underlying concerns about his involvement in world events and preoccupation with religious matters. He continued to think that he was “a sacrificial lamb”. In July 2003 he left his parents house and again drove back to the city. On the way he had a motor vehicle accident. The car was not drivable to the city. He therefore retuned to his parent’s property and remained another three weeks. He did not attribute any specific meaning to his accident.
For the next two weeks he spent time thinking about his situation; the threats; his purpose; being a sacrificial lamb and having to sacrifice himself to save his parents and the world from negative world events that were occurring around him.
He returned to Sydney by train. Arriving in Sydney he lived in the Domain Park area where he slept. He was preoccupied with thoughts about “the group” that he had to confront. He spent his time trying to understand who this group might be. He found himself walking around in the city, considering whether or not groups of people that he met represented this group.
For example people in the street or workers on the side of the street. He felt frustrated because he couldn’t find them. He did not recall fear. He felt “unsettled”. He said, “it was a riddle, a puzzle, I couldn’t find certain pieces”. He attributed meaning to events in the street such as sirens. Sirens meant that wherever they were going there was somebody suffering. This meant that there was still a lot of evil in the world. He felt he could minimise this evil by confronting this group that was somewhere in the city and handing himself over to them. He lived in the street also because he thought there was something wrong with money, that money was the easy way of copping out. He remained living itinerant between early August and the end of August 2003.
In late August 2003 he returned back to (Laguna). He then got a lift to Fairfield/Liverpool.
On the Sunday prior to the alleged offence he went to Cabramatta. He had the feeling that he needed to experience things that were “on the darker side of life” such as drug addiction. He said that people were suffering because of this and he needed some sort of understanding of this. He thought if he tried heroin “the experience would nullify the outcome if I was going to face the group of people”.
He obtained heroin and took about one syringe. This he said was his first experience of heroin. He stayed at this person’s house overnight.
The following day he left. He walked from Cabramatta to Fairfield. On the way he saw a car that had keys in its ignition. He felt it was part of “the larger plan” because he needed to fulfil his mission that the car was there for him to take. He needed to get back to Sydney to meet this group.
When he returned to the city he said “I felt paranoid so I went to (Laguna)”. He stayed again for a couple of nights before returning to Sydney.
The accused said, “at this stage things became confusing”, “I wasn’t sure where the group of people were that I was trying to locate”. He parked the car in Kings Cross and walked the streets trying to locate them. He walked for an entire day. He had no luck in finding them. That night he slept in the car.”

24 The accused gave an account of the day of the offence as follows:

“The next day he drove to a different area. He recalled this was the Gladesville/Ryde area. He parked the car in a football field parking lot. He stayed there at the time to “get a handle on my thoughts. I couldn’t understand why I was doing what I was doing”. He went for a walk. He felt angry with himself, frustrated with his circumstances, unsure of his intended purpose. He denied any perceptual experiences at that stage such as voices, tastes, smells or visions. He had “ideas”. The ideas involved the threats that he was concerned about with the need to have a physical confrontation with this group. He said by his recollection he walked for approximately 40 to 60 minutes. He recalled seeing other people in the park.
He recalled a lady walking towards him. He recalled bumping into her. He recalled her falling on the ground. He then said, “Everything becomes a blur”. His next clear memory was walking back to the car. He was not feeling sure of what he was doing there. He was thinking he might have hurt someone. He felt some uncertainty and frustration again because he had not yet confronted this group. When I asked him he denied that he had recollections that he had actually attacked anybody.
He said that prior to the time of the alleged offence he had felt a compulsion to confront this group. He denied that he believed the compulsion related particularly to the victim.”

25 Dr Allnutt noted that the accused denied that there was any sexual intent or any attempt to rob Mrs Booth. I accept those denials, there is ample material to support them.

26 The accounts to the other psychiatrists differ, of course, in details, however, there are no critical differences.

27 Dr Allnutt considered that the accused’s mental deterioration occurred sometime in 1992 and his preferred diagnosis was of Chronic Schizophrenia. He was aware of long term marihuana and cannabis abuse but thought Drug Induced Psychosis not the most appropriate diagnosis.

28 In cross-examination Dr Allnutt agreed that the symptoms described by Mrs Kinloch “were absolutely classic symptoms of deep seated chronic schizophrenia.”

29 In cross-examination, in accordance with the views he had expressed in chief at somewhat greater length, Dr Allnutt gave evidence:

“Q. Is this the position, Dr Allnutt; if pressed you would say that, on the balance of probabilities, the accused at the time he killed Mrs Booth could not reason with a moderate degree of sense and composure about right and wrong?
A. Yes. I think on balance that would be a fair conclusion to reach.”

30 Dr Lucas’ diagnosis was of chronic paranoid schizophrenia. He considered the accused to have been acutely psychotic and disturbed at the time of the death of Mrs Booth.

31 He said in his report 12 July 2004:

“In my opinion, he has the defence of mental illness to the charge of murder. He was suffering from a disease of the mind, chronic paranoid schizophrenia, and although he knew the nature and quality of his act he was unable to reason about its wrongness with a moderate degree of sense and composure. I note that he does not have full recall of his actions but from the information he gave me there is no reason to suppose he was unaware of their physical nature and quality.”

32 Dr Westmore’s diagnosis as set out in his report of 16 June 2004 was of a schizophrenic illness. In his report he said:

“….and I again offer the opinion that on the balance of probability he was mentally ill (at) the time the offence occurred and that on the balance of probability the illness played a direct role in his behaviour towards the victim.”

33 In chief Dr Westmore gave evidence:

“Q. If I can take you to it in formal terms, you believe that at the time of the killing that the accused had a defect of reason?
A. Yes.
Q. And that that defect of reason arose from a disease of the mind, that is schizophrenia?
A. Yes.
Q. Did you conclude that his defect of reason was such that he was unable to appreciate that he was doing wrong when he killed Mrs Booth?
A. That’s what I believe, yes.
Q. Is it your opinion that of the two available defences for the accused, the one that he most clearly makes out is the defence of mental illness?
A. That’s correct, yes.”

34 Dr Allnutt had in his report expressed three matters of reservation. In view of his ultimate conclusion and the views of the other psychiatrists’ I do not think it necessary to go to those matters.

35 I am satisfied beyond reasonable doubt that Mrs Booth is dead and that it was the act of the accused in applying compressive pressure to her throat which brought about her death.

36 I am also satisfied beyond reasonable doubt that the act of the accused was voluntary (Hawkins v The Queen [1994] 179 CLR 500 at 513).

37 There is no evidence, nor was it submitted otherwise, to raise an issue as to specific intent based upon a mental condition falling short of mental illness under the Mental Health (Criminal Procedure) Act 1990. (Hawkins v The Queen (Hawkins v The Queen [1994] 179 CLR 500 at 513)at 517)

38 The material tendered in evidence, which I accept, not only discloses that each of the required elements of the offence of murder has been proved beyond reasonable doubt, but that there is available no other matter required to be excluded beyond reasonable doubt by the Crown to establish what in the normal course would be guilt of the crime of murder.

39 I turn therefore to the defence of mental illness. The classic statement of that defence was made 156 years ago in Regina v McNaughton (1853) 8 ER 718 at 722. It has been authoritatively amplified in this country by Dixon J in directing a jury in Rex v Porter (1933) 55 CLR 182 at 189-190. The High Court affirmed the principle in Rex v Sodeman (1943) 455 CLR 191 at 215.

40 The test can be shortly stated: that the accused has to prove on the balance of probabilities that he was labouring under such a defect of reason from a disease of the mind so as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. As Sir Owen Dixon said in Porter at 189-190:

“If through the disordered condition of the mind…the accused…could not reason about the matter with a moderate degree of sense and composure, it may be said that he could know that what he was doing was wrong. What is meant by, ‘wrong’? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.”

41 Before considering this defence I am obliged to take my attention to the requirements of s 37 and s 38 of the Mental Health (Criminal Procedure) Act 1990

42 The law requires me to explain to myself the legal and practical consequences if I were to find that the accused was “not guilty on the ground of mental illness”. The purpose of the explanation is so that I understand what would follow from a verdict of not guilty on the grounds of mental illness”. It does not to invite me to select that verdict in preference to any other. It is simply to inform me as to what the legal and practical consequences of it will be.

43 I must arrive at my verdict, whatever it is, in accordance with the evidence and the appropriate principles of law. A verdict of simply “not guilty” would mean that the accused may be discharged into the community, but on my returning a verdict of “not guilty on the ground of mental illness” I must order that he be detained in strict custody in such place and in such manner as to me seems fit until released by due process of law.

44 I should also note the evidence and composition of the Mental Health Review Tribunal constituted under the Mental Health Act 1990. The composition of the Tribunal and its relevant functions are as follows:

“Composition of the Mental Health Review Tribunal
The Mental Health Review Tribunal consists of a president or his/her deputy, who must be a lawyer. It also consists of two other persons, one of whom must be a psychiatrist. The third member is a person who has suitable qualifications or experience for the task.


Functions of the Tribunal
1. To review the accused’s case as soon as practicable after an order is made for his detention in strict custody and make a recommendation to the Minister for Health as to the accused’s continued detention, care or treatment.
2. Only if satisfied that the safety of the accused or that of any member of the public would not be seriously endangered by the accused’s release may a recommendation for release be made. If there is such a recommendation, then the Minister for Health must notify the Attorney-General and, at the same time, furnish a copy of his notification to the Director of Public Prosecutions. If the Attorney-General makes no objection to a recommendation for release within thirty days after being so notified by the Minister for Health then, and only then, may an order be made for the accused’s release, provided that the Minister for Police and Emergency Services are informed of the date of any such release.
3. Where release is not recommended, the Tribunal orders continued detention, care and treatment in a place and manner specified by the Tribunal.
4. After the review referred to in note (1), the Tribunal must, at least once every six months, again review the case and make recommendations to the Minister as to the accused’s continued detention, care or treatment in a hospital, prison or other place or as to his release.
5. In addition, the Tribunal must also review the case and make a recommendation to the Minister for Health if requested to do so by that Minister, the Attorney-General, the Minister for Corrective Services, the Chief Health Officer or by a medical superintendent of a hospital. Again, the Tribunal must not recommend release unless satisfied as to the safety of the accused or any member of the public.
6. If release is ordered, then it may be on conditions or unconditionally. On breach of a condition, or where the mental condition of the accused has deteriorated so that he may be a serious danger to others a further order may be made for his apprehension, care and detention.
7. Security conditions (as necessary) continue whilst the accused is in detention in a hospital, prison or other place or where he is allowed to be temporarily absent.
8. A person found “not guilty on the ground of mental illness” may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired by effluxion of time.”

45 Having regard to the unanimous view of the three psychiatrists who have given evidence and the absence of any material that would justify the rejection of all or part of their reasons, I need say no more than that I am satisfied on the balance of probabilities that the defence of mental illness has been made out.

46 In these circumstances I do not come to consider the defence of substantial impairment.

47 Having so found I return a special verdict of not guilty by reason of mental illness.

48 Such a finding requires, pursuant to s 39 of the Mental Health (Criminal Procedure) Act 1990, that I order that Gregory Philip Matthew Kinloch be detained in strict custody at Long Bay Prison Hospital or any other place that the Mental Health Review Tribunal directs until released by due process of law.

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Last Modified: 11/09/2004